THE COURT ORDERED that no one shall publish or reveal the name or address
of the children who are the subject of these proceedings or publish or reveal any
information which would be likely to lead to the identification of the children or
any member of their family in connection with these proceedings.
JUDGMENT
In the matter of C (Children)
before
Lady Hale, President
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
14 February 2018
Heard on 9 and 10 October 2017
Appellant Respondent
Henry Setright QC Charles Hale QC
Michael Gration Jacqueline Renton
Michael Edwards
(Instructed by Crosse &
Crosse Solicitors LLP
)
(Instructed by Ellis Jones
Solicitors LLP
)
Intervener (International
Centre for Family Law,
Policy and Practice)
(written submissions only)
Christopher Hames QC
Mark Jarman
(Instructed by Stewarts
Law LLP
)
Page 2
LORD HUGHES: (with whom Lady Hale and Lord Carnwath agree)
1. This appeal concerns the Hague Convention on the Civil Aspects of
International Child Abduction (25 October 1980) (“the Abduction Convention”). It
raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the
scheme of that Convention, and
(2) whether and when a wrongful retention of a child may occur if the
travelling parent originally left the home State temporarily with the consent
of the left-behind parent or under court permission, and the agreed or
stipulated time for return has not yet arrived.
In addition, the facts of the present case raise particular questions whether the trial
judge’s conclusions were properly open to him upon:
(a) the habitual residence of the children in the case; and
(b) whether a wrongful retention in fact occurred, and if so when.
The 1980 Hague Abduction Convention
2. The Abduction Convention is in force for some 97 States. Its preamble
records the desire of those States:
“to protect children internationally from the harmful effects of
their wrongful removal or retention and to establish procedures
to ensure their prompt return to the State of their habitual
residence …”
Article 1 states the objects of the Convention as follows:
“(a) to secure the prompt return of children wrongfully
removed to or retained in any Contracting State; and
Page 3
(b) to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in the
other Contracting States.”
3. The general scheme of the Convention is to enable a left behind parent to
make this application in the State to which a child has been taken, seeking return of
the child. States are required to set up Central Authorities to transmit and receive
such applications. Where the removal from the home State, or the retention in the
destination State is wrongful, the courts of the recipient State are required by article
12 to order the return of the child “forthwith”. Apart from a saving provision in
article 20 which permits refusal to return where such would amount to a breach of
the requested State’s fundamental principles of human rights, that obligation to
return is subject to very limited exceptions which, if present, enable (but do not
require) return not to be ordered. Those exceptions are found in article 13 (rights of
custody not being exercised; consent or acquiescence of the left-behind parent; grave
risk that return would expose the child to physical or psychological harm or would
place him/her in an intolerable situation; child’s objections), and in article 12 (child
has been in the recipient State for one year from the wrongful removal or retention
and is now settled there). Where prompt notice of wrongful removal or retention is
received, the recipient State is required by article 16 to abstain from any decision on
the merits of rights of custody, unless it is determined that return is not to be ordered.
Moreover, States are required to act fast on any request. By article 11 an initial
period of six weeks is stipulated, and the applicant or his Central Authority are
entitled to an explanation from the recipient State if that period is exceeded. Thus
the return is summary and its object is to enable merits decisions as to the child’s
future to be made in the correct State, rather than in the State to which the child has
been wrongfully taken, or in which he/she has been wrongfully retained. The general
purposes and scheme of the Convention are expanded upon in an explanatory report
by Professor Elisa Pérez-Vera on the work of the drafting conference, which report
accompanied the original framing of the Convention; it is accordingly an aid to
construction recognised in international law and in particular under article 32 of the
Vienna Convention on the Law of Treaties (1969). In England and Wales the
Convention is given domestic effect by the Child Abduction and Custody Act 1985,
section 1(2).
4. Four key concepts underlie the Convention: wrongful removal, wrongful
retention, rights of custody and return. The principal provisions which require
attention in the present case, apart from the preamble and article 1, set out above,
are articles 3, 4, 5, 12 and 16. So far as relevant, they say:
Page 4
“Article 3
The removal or the retention of a child is to be considered
wrongful where –
(a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was
habitually resident immediately before the removal or
retention; and
(b) at the time of removal or retention those rights
were actually exercised, either jointly or alone, or would
have been so exercised but for the removal or retention.
…”
“Article 4
The Convention shall apply to any child who was habitually
resident in a Contracting State immediately before any breach
of custody or access rights. The Convention shall cease to apply
when the child attains the age of 16 years.”
“Article 5
For the purposes of this Convention –
(a) ‘rights of custody’ shall include rights relating to
the care of the person of the child and, in particular, the
right to determine the child’s place of residence;
(b) [rights of access]”
“Article 12
Where a child has been wrongfully removed or retained in
terms of article 3 and, at the date of the commencement of the
proceedings before the judicial or administrative authority of
Page 5
the Contracting State where the child is, a period of less than
one year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the
child forthwith.
The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the
period of one year referred to in the preceding paragraph, shall
also order the return of the child, unless it is demonstrated that
the child is now settled in its new environment. …”
“Article 16
After receiving notice of a wrongful removal or retention of a
child in the sense of article 3, the judicial or administrative
authorities of the Contracting State to which the child has been
removed or in which it has been retained shall not decide on
the merits of rights of custody until it has been determined that
the child is not to be returned under this Convention or unless
an application under this Convention is not lodged within a
reasonable time following receipt of the notice.”
The facts
5. The mother, although born in Canada, was brought up in England and is
originally of British nationality. The father is Australian. Mother went to live in
Australia in 2008. There she met, and later married, the father. She took Australian
citizenship in 2014 and so now has dual British/Australian nationality. Two children
were born to them in 2012 and 2014. By the end of 2014 the marriage was in
difficulties. Mother was on maternity leave from her job at the time. She told Father
that she wanted to make a trip to England with the children before going back to
work. Although initially reluctant, he agreed to an eight-week visit. Mother and the
children came to England on 4 May 2015 with return tickets then scheduled for 24
June. They went to stay with the maternal grandmother, where they have since
remained.
6. Discussions between Mother and Father then resulted in Father agreeing to
an extension of the eight-week visit. Initially, Father agreed to a four-week
extension. But then, on 28 June 2015 he sent Mother an email which said:
Page 6
“For the happiness of yourself & the children & for moving on
with our lives I am in agreement that u n the children stay in
the UK for a year.”
That email left open whether the year ran from its date or from Mother’s first arrival
six or seven weeks earlier. The difference does not affect the outcome of the present
dispute, but it is relevant that Father raised the question in emails to Mother whether
she intended to return in May or June 2016. She did not answer the question. On the
basis of the extension she gave notice to her Australian employer and looked for
work in England. In September 2015 she enrolled the older child at a local preschool.
7. The children had entered England on six month visitor visas, so steps needed
to be taken to regularise the longer stay now contemplated. What Mother then did
loomed large at the hearing before the judge. Without telling Father she applied on
2 November 2015 for British citizenship for the children. She engaged solicitors to
make the application. Those solicitors wrote on her behalf to the United Kingdom
immigration authorities on 4 November 2015. In the course of a long letter they
asserted that the marriage had irretrievably broken down, that Mother had been the
object of repeated domestic abuse which had, moreover affected the elder child
adversely, that she had been “effectively forced not to return to Australia in order to
safeguard herself and the children” and that the children could not return to Australia
because there was nowhere safe for them to go. The letter added:
“It cannot be in doubt that the children’s centre of life is, and
will be, in the UK where the children are registered as
requested.”
8. Meanwhile in continuing correspondence between the parents, Father
pressed Mother on her expected date of return. On 11 February 2016 she wrote
saying that she did not know what her plans were but “Short term I will not be
returning in May”. She added “I will not base my return to Australia at your
demand.” Later, Father referred her to the Abduction Convention and instructed
solicitors who wrote formally to ask Mother when she planned to return. She replied
in June 2016:
“Thank you for allowing me the time to seek professional
advice … I can confirm that I intend to remain in the UK for
the short term.”
Page 7
9. In due course both parents gave oral evidence at the hearing before the judge
of Father’s application under the Abduction Convention. By then it was accepted
that Mother did not propose to return. The issue of when she had so decided was
much in contention. The judge’s conclusions on the topic are considered below:
[2016] EWHC 3535 (Fam). But Mother’s own case was that by April 2016 she had
“felt that we wouldn’t be going back”. That meant that on any view there had been
a decision not to return before the expiry of the agreed year of stay in England. That
gives rise to the second general question in this case, namely: whether and when
such a decision can make the retention in the destination country wrongful for the
purposes of the Abduction Convention before the expiry of any agreed or sanctioned
term of residence there.
10. The judge also had to make findings as to the place of the children’s habitual
residence. The details of his conclusions are set out below, but he found that they
were habitually resident in England and Wales by at the latest the end of June 2016,
which was the last possible date for the expiry of the agreed year of stay. He added
that in his view it was eminently arguable that they had acquired habitual residence
significantly before that date. Those findings give rise to the first general question
in this case, namely: what is the effect on an application under the Abduction
Convention if the child has become habitually resident in the destination (requested)
State before the act relied on as a wrongful removal or retention occurs.
The significance of the two general questions
11. In the simple paradigm case of wrongful removal, one parent will have taken
the child from the State where s/he is habitually resident to a destination State.
Similarly, in the simple paradigm case of wrongful retention, one parent will have
travelled with the child from the State of habitual residence to the destination State,
for example for an agreed fortnight’s holiday (and thus without the removal being
wrongful), but will then wrongfully have refused to return. In each of those paradigm
cases, the child will have remained habitually resident in the home State. An
application under the Abduction Convention will be made in the destination (or
“requested”) State for the return of the child to the State of habitual residence. The
return will be a summary one, without investigation of the merits of any dispute
between the parents as to custody, access or any other issue relating to the
upbringing of the child (article 16). Such merits decisions are for the courts of the
State of the child’s habitual residence.
12. In some cases, however, it is possible that by the time of the act relied upon
as a wrongful removal or retention, the child may have acquired habitual residence
in the destination State. It is perhaps improbable in the case of removal, but it is not
in the case of retention. It may particularly happen if the stay in the destination State
is more than just a holiday and lasts long enough for the child to become integrated
Page 8
into the destination State. It is the more likely to happen if the travelling parent
determines, however improperly, to stay, and takes steps to integrate the child in the
destination State. Even in the case of wrongful removal it may be possible to imagine
such a situation if, for example, there had been successive periods of residence in
the destination State, followed by a removal from the State of origin which infringed
the rights of custody of the left-behind parent.
13. In England and Wales at least, this possibility did not in practice arise in the
past, since it was regarded as axiomatic that one parent could not by unilateral action
alter the habitual residence of the child. This proposition dated from a dictum of
Lord Donaldson MR in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC
562, 572, and the decision of Wall J in In re S (Minors) (Child Abduction: Wrongful
Retention) [1994] Fam 70, which was approved by the Court of Appeal in In re M
(Abduction: Habitual Residence) [1996] 1 FLR 887, 892, and, as Baroness Hale
explained in A v A (Children: Habitual Residence) [2014] AC 1 at para 39, it was
thereafter taken for granted. Such a proposition is, however, not generally adopted
in other countries, including the United States, sits uneasily with the equally
axiomatic principle that habitual residence is a question of fact, not law, and is
difficult to accommodate within the European approach which requires an
examination of integration, as exemplified in Proceedings brought by A (Case C523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22,
and which is binding on this country via Council Regulation (EC) No 2201/2003
(“Brussels II Revised”): see the analysis of Baroness Hale in A v A. It was recognised
in In re H (Children) [2015] 1 WLR 863 that such a rule could not survive.
14. If the habitual residence of the child may have changed to the destination
State by the time of the wrongful act of removal or retention relied upon, then it
becomes necessary to know whether the summary procedure of the Abduction
Convention remains available in such a case or does not. Hence the first general
question. If the answer is that it is not available, because the Abduction Convention
pre-supposes an application made in a destination State which is not the State of
habitual residence, then the second general question becomes of importance. It
becomes important because deliberate acts aimed at integrating the child in the
destination State may well be undertaken by the travelling parent once he has
decided not to honour his obligation to return to the State of origin. It will then matter
whether such acts, or other manifestations of his decision, can themselves amount
to wrongful retention. If they can, then wrongful retention may occur before any
change of habitual residence has been achieved and whilst the child is still habitually
resident in the State of origin. If they cannot, and wrongful retention cannot occur
until the day of agreed return arrives, it may be too late for any application under
the Abduction Convention, because the same acts which derive from and accompany
the decision not to return may themselves have resulted in the child becoming
habitually resident in the destination State.
Page 9
The first general question: habitual residence
15. The first question is accordingly this: if by the time of the act relied on as
wrongful removal or retention the child is habitually resident in the State where the
application for return is made, is summary return under the Abduction Convention
still available or not?
16. This question did not arise in either of the courts below, where everyone
proceeded on the assumption that the answer was “no”. It arose in the course of
argument in this court, and we have had the benefit not only of some immediate oral
submissions, but of considered post-hearing written submissions from both parties
and from the International Centre for Family Law, Policy and Practice as intervener.
17. The argument that summary return under the Abduction Convention remains
available runs as follows:
(a) there is no express statement in the Convention that the remedy of
summary return is available only where at the time of the act relied on as
wrongful the child either remains habitually resident in the State of origin or
is not habitually resident in the requested State;
(b) on the contrary, article 3 refers to habitual residence only in order to
identify the proper law – that is to say to identify the law which determines
whether a given act is wrongful (because it is in breach of rights of custody)
or not;
(c) therefore, if the child starts by being habitually resident in State A, but
has by the time of the act relied on as wrongful become habitually resident in
State B, all that article 3 requires is that you look to the law of State B to
decide whether the act was wrongful or not; that is so whether State B is the
requested State, or some intermediate State where the child has become
habitually resident before arriving in the requested State;
(d) once it has been decided that the act constituted either wrongful
removal or wrongful retention, the Convention takes the court to article 12,
which requires an order for return, subject to the limited exceptions contained
in that article and article 13;
(e) moreover, it is noticeable that article 12, in providing for an order for
return, does not specify that return must be to the state of the child’s habitual
Page 10
residence; it could be to any State; this reinforces the conclusion that habitual
residence does not govern the place where application for return may be
made, but is only referred to in the Convention in order to provide which law
is to determine wrongfulness.
18. Accordingly, it is said, on facts such as those of the present case, if the child’s
habitual residence is in England by the time of the act relied on as wrongful
retention, that simply means that it becomes English law which decides whether the
retention was wrongful. If it is decided that it is wrongful, there can still be a return
to Australia.
19. This may be a possible construction if one has regard simply to the wording
of articles 3 and 12. It is, however, not a persuasive construction if one takes into
account the general scheme of the Convention. Nor is it the way that the Convention
has been operated over the nearly 40 years of its life. Nor is this construction
consistent with the way in which the Convention has been treated by subsequent
multi-lateral instruments in the general field of the conflict of laws in relation to
disputes about the upbringing of children.
20. By the time of the Abduction Convention, habitual residence was already
established as the principal internationally-recognised basis for according
jurisdiction relating to the upbringing of children. At any rate by the time of the 1961
Hague Convention on the Protection of Infants, habitual residence was, together
with in some respects the law of the child’s nationality, the principal basis for
jurisdiction (see article 1). By the time of the Abduction Convention, Professor
Pérez-Vera’s report was saying (in para 19) that the Convention:
“rests implicitly on the principle that any debate on the merits
of the question, ie on custody rights, should take place before
the competent authorities in the State where the child had its
habitual residence prior to its removal …”
(See also para 66 which repeats the point.) Since then the principle has become even
more firmly entrenched. The 1996 Hague Convention on Jurisdiction, Applicable
Law, Recognition, Enforcement and Cooperation in respect of Parental
Responsibility and Measures for the Protection of Children (“the 1996 Convention”)
accords jurisdiction, by article 5, to the State for the time being of habitual residence,
subject only to few qualifications. So, for states members of the European Union
(“EU”), does Regulation 2201/2003 (Brussels II Revised) by article 8.
Page 11
21. The entire scheme of the Abduction Convention is to provide a summary
remedy which negates the pre-emptive force of wrongful removal or retention. The
aim was also to defeat forum-shopping. This is made clear by Professor PérezVera’s report, especially at paras 14-15.
“14. … Now, even if the [left-behind parent] acts quickly,
that is to say manages to avoid the consolidation through lapse
of time of the situation brought about by the removal of the
child, the abductor will hold the advantage, since it is he who
has chosen the forum in which the case is to be decided, a forum
which, in principle, he regards as more favourable to his own
claims.
15. To conclude, it can firmly be stated that the problem
with which the Convention deals together with all the drama
implicit in the fact that it is concerned with the protection of
children in international relations derives all of its legal
importance from the possibility of individuals establishing
legal and jurisdictional links which are more or less artificial.
In fact, resorting to this expedient, an individual can change the
applicable law and obtain a judicial decision favourable to him.
Admittedly, such a decision, especially one coexisting with
others to the opposite effect issued by the other forum, will
enjoy only a limited geographical validity, but in any event it
bears a legal title sufficient to ‘legalize’ a factual situation
which none of the legal systems involved wished to see brought
about.”
With that aim in mind, the framers of the Convention deliberately abjured a treaty
which provided for recognition or enforcement of the decisions of the State of
habitual residence. Paragraph 36 of the report makes this clear:
“36. … Secondly, the Convention is certainly not a treaty on
the recognition or enforcement of decisions on custody. This
option, which gave rise to lengthy debates during the first
meeting of the Special Commission, was deliberately rejected.
Due to the substantive consequences which flow from the
recognition of a foreign judgment, such a treaty is ordinarily
hedged around by guarantees and exceptions which can
prolong the proceedings. Now, where the removal of a child is
concerned, the time factor is of decisive importance …”
Page 12
Hence the alternative scheme adopted, for mandatory summary return. Hence also
the critical rule in article 16 that the courts of the requested State are to abstain from
exercising any jurisdiction which they may have (for example based upon the
presence of the child) to make a merits decision.
22. This underlying rationale of the scheme of the Abduction Convention was
recognised by this court in In re E (Children) (Abduction: Custody Appeal) [2011]
UKSC 27; [2012] 1 AC 144. Baroness Hale and Lord Wilson observed at para 8:
“The first object of the Convention is to deter either parent (or
indeed anyone else) from taking the law into their own hands
and pre-empting the result of any dispute between them about
the future upbringing of their children. If an abduction does
take place, the next object is to restore the children as soon as
possible to their home country, so that any dispute can be
determined there. The left-behind parent should not be put to
the trouble and expense of coming to the requested state in
order for factual disputes to be resolved there. The abducting
parent should not gain an unfair advantage by having that
dispute determined in the place to which she has come.”
23. The whole point of the scheme adopted was to leave the merits to be decided
by the courts of the place of the child’s habitual residence. The preamble makes this
clear in almost the first words of the Convention. If, however, the child has by the
time of the act relied on as wrongful become habitually resident in the requested
State, then that State will be the appropriate place for the merits of any custody
dispute to be resolved. If the requested State is the habitual residence of the child,
there can be no place for a summary return to somewhere else, without a meritsbased decision, still less for such to be mandatory. That would be so whether or not
the removal or retention was, judged by the law of the requested State, as the State
of habitual residence, wrongful, for even if it were, it would remain open to either
party to ask the courts of that State to review the future plans for the upbringing of
the child.
24. This understanding of the scheme of the Abduction Convention is reflected
in the provisions of both the 1996 Convention and Brussels II Revised. A large
number of nations are party to these two multinational instruments, but not nearly
so many as are party to the Abduction Convention. These two instruments are
concerned, unlike the Abduction Convention, with recognition and enforcement.
But they are scrupulous to ensure that wherever possible they are consistent with the
Abduction Convention, whose scheme they very plainly seek to preserve.
Page 13
25. The 1996 Convention adopts, by article 7(2) a definition of wrongful removal
and retention in the same words as article 3 of the Abduction Convention.
Substantively, article 7(1) provides for cases of wrongful removal and retention a
limited exception to the ordinary rule in article 5 that jurisdiction moves with the
habitual residence of the child. In effect, the State of habitual residence immediately
before the wrongful removal or retention keeps jurisdiction until not only habitual
residence has shifted but also there has been an opportunity for the summary return
provided for by the Abduction Convention. The effect, plainly intended, is to
preserve the regime of the Abduction Convention, and in particular the mandatory
summary return. But if, at the time of the wrongful act, the requested State had
become the State of habitual residence, the extension by article 7(1) to the
jurisdiction of the previous State of habitual residence would have no application
and the requested State would have sole jurisdiction; in such an event, there could
be no question of a mandatory summary return without consideration of the merits.
26. Brussels II Revised adopts a similar structure to the 1996 Convention. article
2(11) provides a definition of wrongful removal and retention which, although not
in identical words to article 3 of the Abduction Convention, achieves the same result,
and in particular makes the test for wrongfulness the law of the State of habitual
residence immediately before the act relied upon. Article 10 prolongs the
jurisdiction of that State in the event of a wrongful removal or retention in much the
same terms as does article 7 of the 1996 Convention. As with the 1996 Convention,
the intention is plainly to preserve the regime of the Abduction Convention, and
article 11 goes on to make supplemental provision for the handling of applications
under it. It is revealing that it does so after introduction in the following terms:
“(1) Where a person [etc] having rights of custody applies to
the competent authorities in a member state to deliver a
judgment on the basis of [the Abduction Convention] in order
to obtain the return of a child that has been wrongfully removed
or retained in a member state other than the member state
where the child was habitually resident immediately before the
removal or retention, paragraphs 2 to 8 shall apply.” (Emphasis
supplied)
Of course, this provision applies only as between States members which are of the
EU. But there is no reason why such States alone should adopt a rule that the
requested State must be a different one from the State of habitual residence
immediately before the wrongful act. On the contrary, the aim is clearly to preserve
the scheme of the Abduction Convention. The words “other than the member state
where the child was habitually resident immediately before the removal or retention”
plainly assume that this is the scheme implicit in the Abduction Convention. Recital
17 to the Regulation, which expresses the intention that the Abduction Convention
Page 14
should continue to operate, also assumes a difference between the State of habitual
residence and the State requested to make a return order.
27. There are other examples of legislative provisions making explicit the
principle that return under the Abduction Convention presupposes return from a
state other than that of habitual residence at the time of the wrongful act. In New
Zealand, the Convention is given effect by the Care of Children Act 2004. In that
Act, “removal” includes “retention”, in each case as defined in article 3 of the
Convention. Section 103 provides:
“(1) The Authority must take action under the Convention to
secure the prompt return of the child to a Contracting State
other than New Zealand if the Authority receives, in respect of
a child, an application claiming –
(a) that the child is present in New Zealand; and
(b) that the child was removed from that other
Contracting State in breach of the applicant’s rights of
custody in respect of the child; and
(c) that at the time of the removal those rights of
custody were actually being exercised by the applicant,
or would have been so exercised but for the removal;
and
(d) that the child was habitually resident in that
other Contracting State immediately before the
removal.” (Emphasis supplied)
In Australia the equivalent Family Law (Child Abduction Convention) Regulations
1986 provide by regulation 16(1A)(b) that one of the conditions for an order for
return is that “the child habitually resided in a convention country immediately
before the child’s removal to, or retention in, Australia”.
28. In re H (Minors) (Abduction: Custody Rights), In re S (Minors) (Abduction:
Custody Rights) [1991] 2 AC 476 the House of Lords addressed the question
whether wrongful removal and wrongful retention were mutually exclusive
concepts; the issue arose in the context of the commencement date for the 1985 Act
as between the two States involved. The House held that for the purposes of the
Page 15
Abduction Convention the two concepts were mutually exclusive, and that because
article 12 required it to be possible to calculate the 12-month period from a wrongful
retention, as well as from a wrongful removal, the former could not be regarded as
simply continuing, but had to have an identified date, in effect its beginning. Giving
the sole speech, Lord Brandon explained, at 498G:
“The preamble of the Convention shows that it is aimed at the
protection of children internationally (my emphasis) from
wrongful removal or retention. article 1(a) shows that the first
object of the Convention is to secure the prompt return to the
state of their habitual residence … of children in two
categories: (1) children who have been wrongfully removed
from the state of their habitual residence to another contracting
state; and (2) children who have been wrongfully retained in a
contracting state other than the state of their habitual residence
instead of being returned to the latter state. The Convention is
not concerned with children who have been wrongfully
removed or retained within the borders of the state of their
habitual residence.” (Emphasis of “other” supplied)
That echoed an observation of Lord Donaldson MR in the same case in the Court of
Appeal. He had said, [1991] 2 AC 476, 486F:
“… plainly the Act and Convention can only apply if the child
is found in a different State from that in which it was habitually
resident …”
The question raised in the present case did not arise for decision in In re H; In re S
and so the observations noted were not the result of argument on the point now at
issue. They were, however, a considered analysis of the scheme of the Abduction
Convention, and they have been consistently followed in England and Wales ever
since. In consequence in a number of cases, which it is not necessary to list,
applications under the Convention have failed where the child was habitually
resident in England and Wales by the time of the wrongful act relied upon.
29. The researches of counsel, for which we are very grateful, have disclosed that
a similar approach has been adopted in Scotland, France, Israel, Switzerland,
Canada, Australia, New Zealand and various United States courts whether federal
or state. Whilst those surveys cannot by their nature be exhaustive of every decision
in every jurisdiction, what is significant is that none of them, including those
conducted on behalf of those arguing against the currently assumed analysis (Father
and the Intervener), has unearthed any decision to the contrary.
Page 16
30. In C v M (2014) (Case C-376/14PPU); [2015] Fam 116 the Court of Justice
of the European Union (“CJEU”) adopted the same analysis. The French Father had
made application to the Irish Court for the return of children who had been taken to
Ireland by Mother. The background was an initial decision of the French court
permitting relocation to Ireland, which had been appealed promptly. Mother had
moved notwithstanding the pending appeal, a stay having been refused to Father,
and subsequently the French decision had been reversed by the appeal court. The
Irish court was minded to find that the child had become at some stage habitually
resident in Ireland. It referred a number of questions to the CJEU. The CJEU decided
(1) that the initial removal to Ireland had not been wrongful, because of the then
extant first instance decision permitting the move (para 44), (2) that the subsequent
retention there after the French appellate decision might justify an order for return
but (3) this would depend on whether by then the child was habitually resident in
Ireland (paras 45-49 and 63). If habitual residence had by then been established in
Ireland, there could be no order for return. At para 48 the court said:
“Article 11(1) of the Regulation [vis Brussels II Revised] …
provides that paragraphs 2-8 of that article are to apply where
the holder of rights of custody applies to the competent
authorities of a member state to deliver a judgment on the basis
of the 1980 Hague Convention in order to obtain the return of
a child that has been wrongfully removed or retained ‘in a
member state other than the member state where the child was
habitually resident immediately before the wrongful removal
or retention’. It follows that this is not the case if the child was
not habitually resident in the member state of origin
immediately before the removal or retention.”
31. It is certainly true that this paragraph proceeds from the words of article 11(1)
of Brussels II Revised. But the application which the father had made was under the
Abduction Convention. He had referred also to Brussels II Revised, but this
Regulation does not contain the duty to return a child; what it does is to recognise
that the Abduction Convention does contain such a duty, and by article 11 it provides
supplementary rules for how this duty is to be performed. En route to its conclusion,
the CJEU emphasised, first, that the Regulation and the Abduction Convention were
to be “uniform”, that is to say consistent (para 58), and secondly that a decision to
return under the Abduction Convention is not a decision on the merits and thus there
can be no occasion for a conflict of jurisdiction between the requesting and requested
State (paras 37 and 40-42). It left to the Irish court the decision of fact whether and
when habitual residence had been established in Ireland. It may be that its
proposition that for a return order under the Abduction Convention to be made it
was essential that the child was habitually resident at the time of the wrongful act in
the State of origin, as distinct from some State other than the requested State, might
be wider than necessary, for it may not have considered the possibility of habitual
Page 17
residence in an intermediate State, which did not arise for debate. But what is
abundantly clear is that it is only under the Abduction Convention that a summary
order for return is provided for, and that such an order could not be made if the child
was, by the time of the wrongful act relied upon, habitually resident in the requested
State. There is no hint in the court’s decision that Brussels II Revised has in any
sense modified the fundamentals of the scheme of the Abduction Convention for EU
members; quite the contrary.
32. In the later case of OL v PQ (2017) (Case C-111/17PPU), a different chamber
of the CJEU reached a similar conclusion. The court held that a child born in Greece
was habitually resident there, despite the originally Italian home of her parents, and
that in consequence an order under the Abduction Convention for return from
Greece to Italy could not be made by the Greek court. At para 38 the court said:
“It is clear from those provisions that the concept of ‘habitual
residence’ constitutes a key element in assessing whether an
application for return is well founded. Such an application can
succeed only if a child was, immediately before the alleged
removal or retention, habitually resident in the member state to
which return is sought.”
33. The nearest case proffered as any indication to the contrary is In re G (A
Minor) (Enforcement of Access Abroad) [1993] Fam 216. There, the Court of
Appeal held that a Canadian-resident father could use the Abduction Convention
(article 21) to enforce his Canadian-given rights of access in relation to a child who
was habitually resident in England by the time the mother declined to comply with
them. But that was not a case involving any question of return. The provisions of
the Convention in relation to access are notably more fluid and flexible. They simply
require the central authorities to facilitate co-operation with a view to preserving
access rights. They make no demands of the courts of the requested State and to the
extent that they contemplate that an application may be made there, they appear to
assume that those courts will conduct a merits hearing. They provide no guide to the
scheme of the Convention in relation to applications for orders for summary return.
34. These various examples of the practice as to the application of the Abduction
Convention thus all point in the same direction. The Convention cannot be invoked
if by the time of the alleged wrongful act, whether removal or retention, the child is
habitually resident in the State where the request for return is lodged. In such a case,
that State has primary jurisdiction to make a decision on the merits, based on the
habitual residence of the child and there is no room for a mandatory summary return
elsewhere without such a decision. It may of course be that in making a merits
decision, the court of the requested State might determine that it is in the best
interests of the child to be returned to his previous home State, and indeed might do
Page 18
so without detailed examination of all possible evidence, as the English courts may
do (see In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40; [2006] 1
AC 80). But so to do is very different from making a summary order for return
without consideration of the merits under the Abduction Convention.
35. The submissions made to this court addressed also the separate question of
whether a return under the Abduction Convention, if made, must always and only
be made to the State of habitual residence immediately before the wrongful act. It is
to be noted that article 12 does not contain any such restriction, and that Professor
Pérez-Vera’s report at para 110 makes clear that the decision not to do so was
deliberate. The reason given is that whilst ordinarily that State will be the obvious
State to which return should be made, there may be circumstances in which it would
be against the interests of the child for that to be the destination of return. The
example given is of the applicant custodial parent who has, in the meantime, moved
to a different State. The propriety, in such circumstances, of an order returning the
child to the new home state of the custodial parent is not in issue in this case. For
the reasons given above, the silence of article 12 on the destination of a return order
is of no help on the issue which does arise, namely whether an order for return can
be made if at the time of the wrongful act the child was habitually resident in the
requested State. It is however to be observed in passing that the unusual
circumstances envisaged in para 110 of the Pérez-Vera report were held at first
instance to have arisen in O v O (Child Abduction: Return to Third Country) [2013]
EWHC 2970 (Fam); [2014] Fam 87 and there did result in an order for return to the
new home State.
The second general question: when does wrongful retention occur?
36. This was the question of principle on which leave to appeal to this court was
given. If the child has been removed from the home State by agreement with the
left-behind parent for a limited period (and thus the removal is not wrongful), can
there be a wrongful retention before the agreed period of absence expires? The
classic example of the possibility is where the travelling parent announces, half way
through the agreed period (say of a sabbatical year of study for the parent) that he
will not under any circumstances return the child in accordance with the agreement
he made. He might do more. He might effectively make it impracticable to return,
by, for example, selling his house in the home State, abandoning his job there, and
obtaining residency in the new State for himself and the child on the basis of an
undertaking that they will both remain there indefinitely. No doubt other examples
could be postulated. The question is whether, if such a thing occurs, there is then
and there a wrongful retention, or whether his retention of the child cannot in law
be wrongful until the date agreed for return arrives and, as it was graphically put in
the American case of Falk v Sinclair (2009) 692 F Supp 2d 147, the aeroplane lands
and the child is not among those who disembark.
Page 19
37. There is some difficulty in devising a suitable shorthand for the possibility of
wrongful retention in advance of the due date for return. One which has been used
is “anticipatory retention”. This is certainly convenient but it may lead to
misconceptions. If early wrongful retention is a legal possibility, it is not because
there is an anticipation of retention. On the contrary, the child is retained in the
destination State from the moment of arrival, just as he is removed from the home
State at the moment of departure. If the departure and arrival are permitted by
agreement with the left-behind parent, or sanctioned by the court of the home State,
they are still respectively removal and retention, but they are not wrongful. So what
is under consideration is a retention which becomes wrongful before the due date for
return.
38. The key to the concept of early wrongful retention, if it exists in law, must be
that the travelling parent is thereafter denying, or repudiating, the rights of custody
of the left-behind parent and, instead of honouring them, is insisting on unilaterally
deciding where the child will live. In the absence of a better expression, the term
which will be used here will, for that reason, be “repudiatory retention”. That is not
to import contractual principles lock stock and barrel into the concept, for the
analogy with a contract is only partial. It is simply to attempt a shorthand
description.
39. The expert and thorough analysis of the known cases in several different
jurisdictions which was undertaken in this case by Black LJ, as she then was, cannot
be improved upon. It is to be found at paras 28-97 of her judgment [2017] EWCA
Civ 980; [2017] 3 FCR 719. On this part of her judgment the Court of Appeal was
unanimous. It shows that a concept of repudiatory retention has been recognised in
some jurisdictions, and for many years now: early examples included Wall J’s
decision in In re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70 and
the Canadian case of Snetzko v Snetzko (1996) CanLII 11326. Other cases have
rejected the concept, for example in Australia. There are cases going either way in
the United States. It follows that there is no generally accepted international practice
on the point, nor is there clear authority either way in this jurisdiction. In those
circumstances it is necessary for this court to address the principle of the suggested
concept.
40. The Court of Appeal concluded unanimously that there was a concept of
repudiatory retention known to the law. It divided, however, as to whether it could
exist only when the repudiation was communicated to the left-behind parent (or at
least manifested by action), as Black LJ held, or whether such communication was
not necessary in law, as Sharp and Thirlwall LJJ concluded. In considering the
existence of the concept, it is necessary also to address how repudiatory retention, if
it exists at all, may occur.
Page 20
41. The helpful submissions made to this court identified six suggested reasons
why such a concept is inconsistent with the Abduction Convention and not known
to the law.
(i) In principle there can only be a single act of wrongful retention and
this cannot occur until the due date for return arrives, and is not honoured,
because until then there is no breach of the rights of custody of the left-behind
parent.
(ii) In ordinary language “retention” means continuing to hold or to keep
possession; however, until the due date for return arrives, the travelling
parent’s retention is sanctioned and not wrongful.
(iii) A repudiatory retention is too uncertain a concept, for the travelling
parent may change his mind and return after all on the due date, whatever he
may have said or done earlier.
(iv) If repudiatory retention were acknowledged, the effect might be to
start the clock running before the left-behind parent knew about it, with the
consequence that the 12-month period stipulated in article 12 might wholly
or partly pass and the left-behind parent be deprived of or hindered in the
right to a certain order for return.
(v) Any such concept would be likely to lead to prolonged hearings in
applications under the Abduction Convention when it is axiomatic that they
should be such as can be dealt with swiftly and summarily.
(vi) No such concept is needed because the left-behind parent will, if he
cannot obtain a summary return order under the Abduction Convention, have
other effective remedies.
42. The crux of the issue lies in the first two contentions, which are different
ways of expressing the same point. If there is no breach of the rights of custody of
the left-behind parent, then it is clear that the Convention cannot bite; such a breach
is essential to activating it, via articles 3 and 12. It is clearly true that if the two
parents agree that the child is to travel abroad for a period, or for that matter if the
court of the home State permits such travel by order, the travelling parent first
removes, and then retains the child abroad. It is equally true that both removal and
retention are, at that stage, sanctioned and not wrongful. But to say that there is
sanctioned retention is to ask, rather than to answer, the question when such
retention may become unsanctioned and wrongful.
Page 21
43. When the left-behind parent agrees to the child travelling abroad, he is
exercising, not abandoning, his rights of custody. Those rights of custody include
the right to be party to any arrangement as to which country the child is to live in. It
is not accurate to say that he gives up a right to veto the child’s movements abroad;
he exercises that right by permitting such movement on terms. He has agreed to the
travel only on terms that the stay is to be temporary and the child will be returned as
agreed. So long as the travelling parent honours the temporary nature of the stay
abroad, he is not infringing the left-behind parent’s rights of custody. But once he
repudiates the agreement, and keeps the child without the intention to return, and
denying the temporary nature of the stay, his retention is no longer on the terms
agreed. It amounts to a claim to unilateral decision where the child shall live. It
repudiates the rights of custody of the left-behind parent, and becomes wrongful.
44. The plain purpose of the Abduction Convention is to prevent the travelling
parent from pre-empting the left-behind parent. The travelling parent who repudiates
the temporary nature of the stay and sets about making it indefinite, often putting
down the child’s roots in the destination State with a view to making it impossible
to move him home, is engaging in precisely such an act of pre-emption.
45. It is possible that there might also be other cases of pre-emptive denial of the
rights of custody of the left-behind parent, outside simple refusal to recognise the
duty to return on the due date. It is not, however, necessary in the present case to
attempt to foresee such eventualities, or to consider whether fundamental failures to
observe conditions as to the care or upbringing of the child might amount to such
pre-emptive denial. It is enough to say that if there is a pre-emptive denial it would
be inconsistent with the aim of the Abduction Convention to provide a swift, prompt
and summary remedy designed to restore the status quo ante to insist that the leftbehind parent wait until the aeroplane lands on the due date, without the child
disembarking, before any complaint can be made about such infringement.
46. It is no doubt true that a travelling parent might change his mind after an act
of repudiation. But so he might after a failure to return on the due date, and
commonly does when faced by notice of the provisions of the Abduction
Convention, or by an application under it. So also he might, after making an
unsanctioned move to an unagreed country, or after embarking on an unsanctioned
programme of religious conversion. The possibility of a change of heart is no reason
not to recognise that the heart needs changing if rights of custody in the left-behind
parent are to be respected. On the contrary, the desirability of inducing a prompt
change of mind is an argument for recognising a repudiatory retention when and if
it occurs. Proof that it has occurred is a matter of evidence, and what manifestation
of it must be demonstrated is considered below.
Page 22
47. If a concept of repudiatory retention exists, it would indeed follow that once
such an act occurs, the article 12 12-month clock would begin to run at that point. If
the left-behind parent knows of the repudiation, there is every reason why it should
run. If he does not, the possibility exists that the 12-month period partly, or
sometimes wholly, may pass before he finds out and can make an application under
the Abduction Convention. But it is a mistake to think of the 12-month period as a
limitation period, of the kind designed in Limitation Acts to protect a wrongdoer
from claims which are too old to be pursued. It is not a protection for the wrongdoer.
Rather, it is a provision designed in the interests of the child. It operates to limit the
mandatory summary procedure of the Convention to cases where the child has not
been too long in the destination State since the wrongful act relied on. Where it
applies, it does not prevent a summary return; it merely makes it discretionary. In
the event that an act of wrongful repudiatory retention had been concealed, that
concealment might well be one factor in the decision whether to order return or not.
In other cases, the settlement of the child might be so well established that
notwithstanding the wrong done by the travelling parent, it is too late to disturb it.
Such decisions are fact-sensitive ones which are properly left to the court of the
requested State. The risk of the 12-month period running without the knowledge of
the left-behind parent is in any event distinctly less fatal to his interests than the risk
of the child’s habitual residence being changed without his knowledge, or indeed
with his knowledge but without him being able to invoke the Convention because
the due date for return has not yet arrived. The latter risk creates a complete bar to
return under the Convention; the former a discretionary one.
48. The concern that Abduction Convention applications may become longer and
more complicated is a point well made. It was convincingly voiced in the Court of
Appeal by Black LJ. It is of the essence of such cases that the remedy is a swift and
summary one. Oral evidence should be the exception, not the rule. But some limited
disputes of fact are bound to arise. In the kind of case where retention is in question,
it will often be critical to establish what the terms were of any arrangement under
which the child travelled. That may be as necessary to establish the date of due return
(and thus conventional wrongful retention) as to establish an earlier repudiatory
retention. The Family Division judges who hear these cases are well used to
managing them actively and to controlling any tendency to spill outside the issues
necessary to determine them. If the correct rule is that repudiatory retention must be
demonstrated by overt act or statement (see below) the danger of speculative
applications being made, or of hearings degenerating into speculative crossexamination as to the internal and undisclosed thinking of the travelling parent ought
not to arise.
49. It may be that in many cases which would be covered by the concept of
repudiatory retention the left-behind parent may have remedies alternative to an
application under the Abduction Convention. We were pressed with the contention
that ordinarily he will be able to seek an order for return in the home State, and then
Page 23
enforce it in the destination State. This may indeed sometimes be possible. It will be
possible if both States are party to the 1996 Convention and if at the time of the
application to the court of the home State the child is still habitually resident there.
In that event, the home State has jurisdiction (article 5) and the destination State
must enforce its decision (article 23). Article 7 of the 1996 Convention prolongs the
jurisdiction of the home State if there has been a wrongful retention, but if the
habitual residence of the child has been changed to the destination State by the time
of the act relied upon, there will be no wrongful retention and article 7 will not apply.
Nevertheless, the necessity for habitual residence in the home State presents no
greater hurdle to the left-behind parent under the 1996 Convention than under the
Abduction Convention, because if the habitual residence of the child has shifted to
the destination State by the time of the act relied on, neither form of machinery will
work. Likewise, if both States are members of the EU and governed by Brussels II
Revised. All that said, the critical fact is that by no means all States which are party
to the Abduction Convention are party to the 1996 Convention; at the time of the
hearing in this court there were some 49 States which are not. Even fewer are
members of the EU. The Abduction Convention has its own self-contained scheme
and should function as such. The recognition and enforcement provisions in the 1996
Convention are, as explained above, meant to preserve that scheme and not to
substitute for it. Moreover, such an application to the home State would have to
trigger a merits hearing, in which the home State has to adjudicate upon where the
best interests of the child now lie, and upon whether habitual residence has shifted,
all depending on facts occurring perhaps some thousands of miles away. That is not
at all the same as the mandatory summary remedy provided by the Abduction
Convention. Even in jurisdictions, such as England and Wales, which retain the
practice of sometimes returning children without a full investigation of the facts (In
re J, para 34 above), the remedy is not, for the left-behind parent, the equivalent of
the Abduction Convention’s mandatory summary return.
50. For all these reasons, the principled answer to the question whether
repudiatory retention is possible in law is that it is. The objections to it are
insubstantial whereas the arguments against requiring the left-behind parent to do
nothing when it is clear that the child will not be returned are convincing and
conform to the scheme of the Abduction Convention. The remaining question is
what is needed to constitute such repudiatory retention.
51. As with any matter of proof or evidence, it would be unwise to attempt any
exhaustive definition. The question is whether the travelling parent has manifested
a denial, or repudiation, of the rights of the left-behind parent. Some markers can,
however, be put in place.
(i) It is difficult if not impossible to imagine a repudiatory retention
which does not involve a subjective intention on the part of the travelling
parent not to return the child (or not to honour some other fundamental part
Page 24
of the arrangement). The spectre advanced of a parent being found to have
committed a repudiatory retention innocently, for example by making an
application for temporary permission to reside in the destination State, is
illusory.
(ii) A purely internal unmanifested thought on the part of the travelling
parent ought properly to be regarded as at most a plan to commit a repudiatory
retention and not itself to constitute such. If it is purely internal, it will
probably not come to light in any event, but even supposing that subsequently
it were to do so, there must be an objectively identifiable act or acts of
repudiation before the retention can be said to be wrongful. That is so in the
case of ordinary retention, and must be so also in the case of repudiatory
retention.
(iii) That does not mean that the repudiation must be communicated to the
left-behind parent. To require that would be to put too great a premium on
concealment and deception. Plainly, some acts may amount to a repudiatory
retention, even if concealed from the left-behind parent. A simple example
might be arranging for permanent official permission to reside in the
destination State and giving an undertaking that the intention was to remain
permanently.
(iv) There must accordingly be some objectively identifiable act or
statement, or combination of such, which manifests the denial, or repudiation,
of the rights of custody of the left-behind parent. A declaration of intent to a
third party might suffice, but a privately formed decision would not, without
more, do so.
(v) There is no occasion to re-visit the decision of the House of Lords in
In re H; In re S (para 28 above) that wrongful retention must be an
identifiable event and cannot be regarded as a continuing process because of
the need to count forward the 12-month period stipulated in article 12. That
does not mean that the exact date has to be identifiable. It may be possible to
say no more than that wrongful retention had clearly occurred not later than
(say) the end of a particular month. If there is such an identifiable point, it is
not possible to adopt the submission made to the Court of Appeal, that the
left-behind parent may elect to treat as the date of wrongful retention either
the date of manifestation of repudiation or the due date for return. It may of
course be permissible for the left-behind parent to plead his case in the
alternative, but that is a different thing. When once the actual date of
wrongful retention is ascertained, the article 12 period begins to run.
Page 25
This case: the judge’s decision
52. The judge ([2016] EWHC 3535 (Fam)) held that there was no concept of
repudiatory retention known to the law. But he helpfully addressed the facts on the
hypothesis that he was wrong about that. He held that the application to the
immigration authorities made on 4 November 2015 did not amount to such a
repudiatory retention, because although it was concealed from Father, something
had to be done to regularise the stay of the children once it was to last more than
their six month visas permitted. Father, he held, could not properly have objected to
such regularisation, even if Mother feared that he might have tried.
53. There can be no doubt that the judge significantly misdirected himself here.
It was not the application for permission to stay which was potentially significant.
It was what was said, in support of it, about Mother’s intentions. Of course it was
said by her solicitors, but if it showed that by that date she had determined that “the
children’s centre of life is, and will be, in the UK” indefinitely, then it would be
capable of being an objectively identifiable manifestation, made to an official third
party, of her repudiation of Father’s rights of custody, and of the fact that thereafter
her retention of the children in the United Kingdom was not in accordance with the
arrangement she had made with him, but in defiance of it.
54. However, the question which matters is not whether the judge made this
error, but whether it affected his conclusion that Mother had not, before the expiry
of the agreed year (which he determined was at the end of June 2016) made any act
of repudiatory retention.
55. The judge went on to examine Mother’s state of mind. He found that she
vacillated in what she meant to do. He had seen her examined and cross-examined,
and it is clear that he believed her when she said that as at both November 2015 and
February 2016, she had not yet made up her mind. In February she had told Father
only that she would not be returning in May (when the year would not, on the judge’s
findings, have expired). He attributed her uncertainty in part to anticipation of
“harassment” from Father. He then directed himself that even though she gave
evidence that by the end of April 2016 she had resolved not to return, that could not
be a date for repudiatory retention because it was too imprecise and thus inconsistent
with the In re H; In re S rule that retention must be a definite occurrence rather than
a continuing process. To the extent that he relied on imprecision he was, again,
clearly wrong. There is, as explained above, nothing in In re H; In re S which
prevents a court from saying that retention had occurred not later than the end of
April. But what does prevent there from being a repudiatory retention in April is that
Mother’s internal thinking could not by itself amount to such. If she had had such
an intention in November, the application to the immigration authorities would have
been capable of amounting to an objective manifestation of her repudiation, but the
Page 26
judge believed her when she said that she did not. It was open to him to believe her
or not to believe her about this. He saw her and this court has only a transcript. It
does not provide nearly sufficient basis for overturning his decision. His error about
the potential significance of what was said to the immigration authorities in
November is not inconsistent with his yet believing the witness whom he saw when
she said that she had not then (or until April) made up her mind to stay.
56. These findings need to be considered alongside the judge’s decision as to the
habitual residence of the children. He reviewed a body of evidence from Mother,
relatives, neighbours and the playschool manager, to the effect that the children
were, by the Summer of 2016, firmly integrated into the social and family
environment of the part of England in which they had lived for a year, and, in the
case of the younger child, for somewhat longer than he had lived in Australia. By
reference to the decision of Hayden J in In re B (A Child) (Custody Rights: Habitual
Residence) [2016] EWHC 2174 (Fam); [2016] 4 WLR 156, he directed himself
correctly as to the test of habitual residence and the factors relevant to the integration
necessary to establish it. He found that the children were, by the time of their
otherwise wrongful retention at the end of June 2016, already habitually resident in
the United Kingdom, so that the Abduction Convention could not apply to call for a
mandatory summary return. He expressed the view that they had probably become
habitually resident in England “much earlier” than June 2016.
57. There is no basis in law for criticising the judge’s decision as to habitual
residence. His remark that it was “arguable” that the children had established
habitual residence by the time of the November application to the immigration
authorities may well be going too far, for at that stage they had been in the United
Kingdom only since May, a period of about six months, but that remark does not
alter the propriety of his decision as to June 2016, by which time more than a year’s
residence had passed, during which the children had clearly become integrated parts
of English life.
58. For my part, I recognise the force of the contention that the judge’s error
about the potential significance of what was said at the time of the November
application to the immigration authorities infected his decision that there was no
combination of intention not to return and outward manifestation of that decision
until the following summer. But for the reasons given above I conclude that that
infection did not in fact take place. It follows that by the time the children were
retained in the United Kingdom inconsistently with Father’s rights of custody they
had become habitually resident here. That being so, the application under the
Abduction Convention cannot succeed. The consequence is that Mother’s appeal
against the order of the Court of Appeal must succeed, whilst Father’s cross-appeal
in relation to the finding as to habitual residence must be dismissed.
Page 27
LORD KERR: (dissenting)
59. There is much in Lord Hughes’ judgment with which I agree. Like Lord
Wilson (with whose proposed disposal I fully agree) I would have dismissed the
appeal. There is perhaps a slight difference in emphasis between us, however, on the
reasons that the appeal should be dismissed and, on that account, I add this short
judgment.
60. When dealing with the effect of wrongful retention of a child by what has
been described as a travelling parent, one can recognise that various factors are in
play. One starts with the proposition that, in general, it should not be possible for a
child to acquire or for a parent to bestow habitual residence after the time that
wrongful retention begins. A strong imperative exists for discouraging travelling
parents from the view that they can avoid the consequences of the Abduction
Convention by concealing an intention to retain the child in the country to which
they have travelled, on the pretext, for instance, of a holiday of fixed or limited
duration. To insist that wrongful retention can only occur at the end of an agreed
period of absence could lead to absurd results; would encourage dissimulation on
the part of the travelling parent; and would permit habitual residence to be acquired
by the perpetration of deception on the left-behind parent.
61. As against that, it is often difficult retrospectively to decide when wrongful
retention began. It may be the outcome of a gradual change of attitude on the part of
the travelling parent. Retention in the country travelled to may be acquiesced in by
the left-behind parent, even if she or he suspects that the travelling parent may be in
the process of forming an intention not to return the child to the country where she
or he was habitually resident. If the child has formed relationships in the travelled
to country and is well settled there (albeit as a result of the travelling parent’s
covertly formed intention not to return him or her) do the best interests of the child
obtrude on the question of where her or his habitual residence should be found to
be?
62. No final answers to these potentially difficult questions need be given in the
present appeal. I raise them solely to illustrate the extremely trying problems that
can arise in this fraught area.
63. How is the fact (and the time of onset) of wrongful retention to be
established? Clearly the intention of the travelling parent wrongfully to retain is
needed. Must this be accompanied by some overt act or event by which the intention
becomes manifest? Not without misgivings, I am prepared to accept that this is
required. The reason for my misgivings can be explained by taking a simple but not,
I suggest, fanciful, example.
Page 28
64. Suppose a husband persuades his wife to allow him to take their children to
his parents’ native country on the promise that he will return within a stipulated
period. Days after leaving, he conceives a firm determination that the children and
he will never return. He does not communicate this to anyone. Some months later,
he takes action which clearly demonstrates that he has no intention of returning the
children. Evidence emerges that this was his plan from the outset. Is the period
between his first determining not to return the children and the later “event”
reckonable in the assessment as to whether they have acquired habitual residence in
the country of their paternal grandparents? If we say that the retention only becomes
wrongful when the intention of the retaining parent becomes manifest, how is the
claim by the father in my example that the children have become habitually resident
in his parents’ country to be resisted?
65. Again, however, this conundrum does not require to be solved in the present
appeal and, having expressed my misgivings about the notion that some
manifestation of the wrongful retention is required, I say no more about it.
66. For the reasons given by Lord Hughes and Lord Wilson, the judge ([2016]
EWHC 3535 (Fam)) was wrong to hold that the law did not recognise repudiatory
retention. His examination of when such a wrongful retention might have occurred
(if, contrary to his view, the concept exists in law) appears to have been coloured by
that primary finding, for he concluded that it had not arisen in this case at all. That
finding simply cannot be reconciled with his statement in para 80 that “as the months
went by, the mother gradually came to the conclusion that she and the children
should remain in England. She had reached that conclusion by around April though
it was not communicated to the father”. And this, notwithstanding that he had earlier
said, at para 62, that a “finding that there was a wrongful retention on some
unspecified date in April 2016 … is too imprecise.”
67. The opportunity for a firm finding as to the precise timing that an intention
was formed is, in the nature of things, unlikely to be always possible. Intentions are
formed over days, weeks or even years. Because it is not possible to make a positive
finding of the date on which it had been formed is not a reason for not making a
finding as to the time by which it had been formed. And indeed Judge Bellamy
appears to have done precisely that when he said in para 80 that the mother had
decided by “around April” that the children should remain in England.
68. The judge, having made that finding, was obliged to consider whether the
children’s habitual residence had been established in England by April 2016. He did
not do that. On that account alone, his decision cannot be allowed to stand, in my
opinion. It is impossible to say that, if he had recognised the true implication of his
statement that the mother had, by April 2016, formed the intention not to return the
children, he would nevertheless have decided that habitual residence in England had
Page 29
by then already been established. In the absence of a finding to that effect, or
alternatively the inevitability of such a conclusion, it is quite impossible to conclude
that the habitual residence of the children had changed at a time which would
displace the father’s rights under the Abduction Convention.
69. There is a more fundamental problem with the judge’s judgment. This
concerns the communications to the Home Office in November 2015. In the letter
from the mother’s solicitor, it was asserted that she had been advised not to return
to Australia; that it was necessary that she remain in England “to safeguard herself
and her children”; and that there was no doubt that “the children’s centre of life is
and will be in the UK”. At paras 53 and 59 of his judgment, the judge dealt with the
application for British citizenship in the following terse passages:
“The solicitor’s letter to the Home Office dated 4th November
sets out information clearly designed to persuade and assumes
that the person making the decision will be exercising a
discretion. As the Home Office was not required to exercise a
discretion it follows that any misleading or inaccurate
information set out in that letter cannot have had any bearing
on the decision of the Home Office to approve the children’s
applications.”
And
“As the father well-knew, the children had entered the UK on
six-month visitors’ visas. To enable them to stay for the year to
which the father had agreed, some step had to be taken to
enable them lawfully to remain in the UK beyond 5th
November. I do not accept that it can properly be said that the
mother ‘wrongfully retained’ the children from 5 November
2015.”
70. From these passages, two reasons for the judge’s conclusions can be
discerned. First, the circumstance that the Home Office did not have to exercise a
discretion meant that any misleading or inaccurate information in the letter should
be discounted or ignored. Secondly, the fact that the father knew that something
would have to be done to allow the children to remain in the United Kingdom after
5 November 2015 eliminated any possibility of the mother having wrongfully
retained the children from that date.
Page 30
71. Neither reason is sustainable. More importantly, the conclusions that he
reached on those matters deflected the judge from recognising and considering the
significance of the evidence provided by the November 2015 correspondence as to
the mother’s intention at that time. The failure to give proper consideration to that
evidence fatally undermines the conclusion reached by the judge as to the time at
which the mother had conceived the intention to retain the children in England. In
turn, this extinguishes the basis for his decision that the wrongful retention did not
begin until June 2016 and that, by that time, the habitual residence of the children
was England.
72. Why was the judge wrong to decide that, because the Home Office did not
have to exercise a discretion, any misleading or inaccurate information in the letter
should be discounted or ignored? Because this was nothing to the point. The
significance of the letter in the context of these proceedings was its potential to
provide an insight into what the mother’s intention was at the time that it was
written. The purpose of the letter, the result that it sought to achieve, was entirely
incidental to that critical consideration. The importance of the letter bore on the
question of what the mother’s sentiments about the retention of her children in
England were at the time of its dispatch. What it sought to persuade the Home Office
of was entirely irrelevant to that question. But the judge dismissed the letter as a
potential source of evidence on that central question. Until that question is
addressed, the conclusion that the mother had not formed any intention wrongfully
to retain the children in England in November 2015 is simply insupportable.
73. Likewise, the fact that the father knew that something would have to be done
in November 2015 to ensure that the legal entitlement of the children to remain
living in England was preserved, has no direct bearing on the question whether the
letter from the mother’s solicitor showed that, as early as that date, the mother had
decided that she would not return the children to Australia. The contents of the letter
certainly suggested that that was the case. As already observed (in para 11 above),
it had said that she had been advised not to return to Australia; that it was necessary
that she remain in England “to safeguard herself and her children”; and that there
was no doubt that “the children’s centre of life is and will be in the UK”. What the
judge should have asked himself was, “is it conceivable that such a letter would be
sent if the mother had not already decided that she and the children would not return
to Australia?”. Instead, he elided that question by concentrating on the circumstance
that the husband must have known that the mother would have to do something to
regularise the children’s continued stay in England.
74. The important question was why the letter was couched in the terms that it
was, if it did not reflect the mother’s settled intention to remain here. That question
was never asked by the judge and it has not been possible to address it since. It needs
to be asked and satisfactorily answered before any conclusion as to the mother’s
intention in November 2015 about returning her children to Australia can be
Page 31
reached. That is why, in my opinion, remittal of the case for a proper hearing is
unavoidable.
LORD WILSON: (dissenting)
75. I respectfully agree with the exposition of law in the judgment of Lord
Hughes. I disagree with him only when, from para 52 onwards under the heading
“This case: the judge’s decision”, he reaches the conclusion that the mother’s appeal
should be allowed.
76. I consider that this court should have dismissed the mother’s appeal.
77. The trial judge (“the judge”) held that the law did not recognise a repudiatory
retention and that the mother’s retention of the children in the UK became wrongful
only on 28 June 2016, which he found to have been the agreed date for their return
to Australia.
78. The judge added, however, that, even if the law did recognise a repudiatory
retention, he did not consider that it had arisen in the present case, whether in
November 2015 or in April 2016 or at all.
79. As Lord Hughes has explained, the Court of Appeal was right to hold that the
law does indeed recognise a repudiatory retention. The majority (Sharp and
Thirlwall LJJ) proceeded to hold that the judge’s conclusion that in any event it had
not arisen in the present case had been flawed; and they ordered that the case be
remitted for further inquiry in that regard, particularly in relation to circumstances
in November 2015.
80. In my view the majority were right to order that the possibility of a
repudiatory retention, particularly in November 2015, required further to be
explored. It required further to be explored by reference in particular to the mother’s
intention; to the need for some objectively identifiable act of repudiation; and to
whether, immediately before any repudiatory retention, the children had already
acquired their habitual residence in the UK.
81. Although, like the majority in the Court of Appeal, I will focus principally
on circumstances in November 2015, I wish briefly to address the possibility of a
repudiatory retention of the children on the part of the mother in April 2016.
Page 32
82. The judge found:
“I am satisfied that as the months went by the mother gradually
came to the conclusion that she and the children should remain
in England. She had reached that conclusion by around April
though it was not communicated to the father.”
83. So why was there no repudiatory retention in April 2016? In para 55 above
Lord Hughes explains
“… that Mother’s internal thinking could not by itself amount
to such. If she had had such an intention in November, the
application to the immigration authorities would have been
capable of amounting to an objective manifestation of her
repudiation, but the judge believed her when she said that she
did not.”
Today this court decides, with hesitant concurrence on the part of Lord Kerr, that
the concept of a repudiatory retention requires not only an intention on the part of
the travelling parent to retain a child beyond the agreed date of return but also some
objectively identifiable act of repudiation on her part. If, however curiously (see
below), the objectively identifiable act occurred in November 2015 but the requisite
intention arose only “by around April” 2016, how obvious is it that the requirements
of the concept were not at any rate by then satisfied?
84. More importantly, however, the majority in the Court of Appeal were in my
view right to set aside the judge’s finding that the mother’s intention to retain the
children beyond 28 June 2016 arose only by around April 2016. For he did not
grapple with evidence which seemed clearly to point to her having developed that
intention by November 2015.
85. This evidence was the letter dated 4 November 2015 from the mother’s
solicitor to the Home Office, which accompanied her applications on behalf of the
children to be registered as UK citizens.
86. The context was that the children had entered the UK on 5 May 2015 pursuant
to visitors’ visas due to expire on 5 November 2015. In the light of the father’s
agreement that they could remain with the mother in the UK until 28 June 2016, it
was necessary for their visas to be extended for almost eight months. But the
regularisation of their stay in the UK for that extended period could have been
achieved without their becoming UK citizens. So the mother’s applications for them
Page 33
to be registered as UK citizens called for an explanation. Her failure to notify the
father in advance that she was making the applications also called for an explanation
and, in cross-examination, it received one: she explained that she believed that he
would have obstructed them.
87. To her statement in answer to the father’s application, the mother exhibited
her solicitor’s letter dated 4 November 2015. In the letter the solicitor said:
(a) that the mother “was effectively forced not to return to Australia in
order to safeguard herself and her children”;
(b) that she “was advised not to return to Australia”;
(c) that the “interests of these two children are best served by their being
in the UK”; and
(d) that it “cannot be in doubt that the children’s centre of life is, and will
be, in the UK where the children are registered as requested”.
88. The terms of the letter therefore appear to be entirely inconsistent with an
intention on the part of the mother to return with the children to Australia in June
2016 or at all.
89. In the body of her statement the mother said that her decision not to return
the children to Australia in June 2016 had developed over time and had not arisen
long before that date. But she made no comment upon the content of her solicitor’s
letter to the Home Office. She did not say that any part of it had been written without
her approval or was untrue. On the contrary she said that her solicitor had been
“utterly clear that there was nothing wrong or deceptive” in the applications for
citizenship, being an assertion with which she seems there to have associated herself.
90. In cross-examination the mother was taxed, albeit perhaps in terms too
general, about the content of the solicitor’s letter. She agreed that it did not indicate
that she and the children would return to Australia in June 2016. She denied that, as
at the date of the letter, she had formed an intention to stay with them indefinitely in
the UK but, whether in re-examination or otherwise, she offered no explanation for
what her solicitors had said.
Page 34
91. In my view the content of the solicitor’s letter dated 4 November 2015, in
support of applications for the children to acquire UK citizenship, represented a
major obstacle to any finding that the mother had not by then intended to keep the
children indefinitely in the UK. Before making any such finding, the judge was
obliged to weigh that evidence and, on some basis or another, to explain it away.
But, apart from an early reference to “any misleading or inaccurate information set
out in that letter”, he did not address its content in any way. He said simply:
“If there is a ‘binding legal principle in relation to ‘anticipatory
breach’’, I do not accept that the circumstances surrounding the
children’s applications for British citizenship amount to such a
breach. As the father well-knew, the children had entered the
UK on six-month visitors’ visas. To enable them to stay for the
year to which the father had agreed, some step had to be taken
to enable them lawfully to remain in the UK beyond 5
November.”
92. With respect to the judge, he was there missing the main point and was indeed
making an unconvincing subsidiary point. His crucial finding about the mother’s
intention in November 2015, not even expressly made but to be inferred from his
reference to “around April” 2016, was flawed; and the majority in the Court of
Appeal were correct to order that inquiry into it should be conducted again.
