The children were 2 1/2 years and 6 months old at the time of the alleged wrongful removal. They had until then spent all of their lives in Australia. Their unmarried parents had separated prior to the birth of the second child. Under the applicable Australian law both parents enjoyed rights of custody in respect of the children.
In the aftermath of the separation the father maintained contact with both children; the parents were in dispute though as to the level of contact.
In September 2003 the mother obtained the father’s permission to take the children on a one month vacation to the United States. The father understood that the trip was to take place in February 2004. However having obtained the necessary consent the mother immediately took the children to Texas.
The father petitioned for their return. On 6 May 2004 the United States District Court for the Northern District of Texas dismissed the return application on the basis that the father was not actually exercising his rights of custody. The father appealed.
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