The Supreme Court has overturned a Court of Appeal decision that two young children retained in Britain by their mother must be returned to their father in Australia.
By late 2014 the parents’ marriage had run into difficulties and the British mother asked if she could make an extended visit to England with the children. The father agreed. She and the children arrived in England in May 2015, initially for an eight week stay by consent. The father later consented via email for the trip to be extended to a period of one year.
The mother quit her job and began looking for work in England, while the children attended a local kindergarten. Later that year, she also applied for British citizenship for the two children, without providing notice to the father.
The Father later sought clarity on when the children would be returned to the UK. In June 2016, the mother then informed the Father that it was her intent to remain in the UK and permanently relocate the children.
The father commenced proceedings under the 1980 Hague Abduction Convention for the return of the children, a preliminary point of dispute being when the mother had made the decision not to return.
In the High Court, His Honour Judge Bellamy supported the mother’s position, concluding that by the time the year ended the children had acquired habitual residence in the UK. Therefore, the Hague Convention could not be used to return them to Australia, as this international treaty only applies when children have been taken to a country in which they are not habitually resident.
This decision was later overturned by the Court of Appeal, who, in contrast to Judge Bellamy, determined that that there was a legal principle of ‘anticipatory retention’. The second element then determined was habitual residence. The case proceeded to the Supreme Court upon appeal by the mother and a cross appeal by the father.
Lord Hughes delivered the lead judgment. He noted that the key point he and his fellow Justices had been required to consider was:
“…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.”
He explained that the Supreme Court preferred the term ‘repudiatory retention’ to ‘anticipatory’, as the latter, while “convenient”, 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.”
His Lordship continued:
“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.”
Repudiatory retention is possible in law, he declared, but Judge Bellamy had concluded that evidence for the mother planning to stay in the UK before the end of the agreement with the father was not substantial enough to constitute ‘repudiatory retention’. Therefore the father’s application under the Hague Convention had to fail on the grounds of habitual residence.
Whilst the court agreed on the principles, it’s notable that Lord Kerr and Lord Wilson dissented on the key facts of the case.
The full ruling is available here.