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Determining when a parent retains children in another country

It is quite a common scenario that parents will agree that one of them may temporarily remove their children to another country. Obviously, the ‘removing’ parent may then decide not to return the children to the country from which they were removed. A critical question may then be: when did the removing parent make that decision? Did they have the intention not to return the children all along, or did they only form that intention late on? The ‘retention’ only occurs when the decision is made.

The reason why this can be critical is that it relates to the issue of the children’s habitual residence. If both countries are signatories to the Hague Convention on Child Abduction then obviously the ‘left behind’ parent may make an application for their summary return under the Convention. However, the Convention only applies where the removal or retention of the child is ‘wrongful’. It is only wrongful if “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”. Accordingly, if the child stays in the ‘new’ country for long enough, they will gain habitual residence there, and any ‘retention’ thereafter will not therefore be wrongful, so the court cannot order the return of the child.

When the mother retained the children was the essential question for the court in the recent Court of Appeal case G-E (Children : Hague Convention 1980: Repudiatory Retention and Habitual Residence).

The facts of the case were that the father was Australian and the mother British. They were not married but they had two children, born in 2012 and 2014. The family lived in Australia, but the mother and children came to England for holidays. Lord Justice Moylan then takes up the story:

“In January 2017 the mother applied online for, and in April 2017 obtained, a school place for the elder child in England from September 2017. In April she obtained a quotation both for the storage of her possessions in Australia and for their being shipped to England. The mother accepted that she did not inform the father about these matters but said that this reflected the manner in which they conducted their lives and were not “clandestine” acts as suggested by [the father’s counsel].”

In or about June 2017 the parents agreed that the mother and the children would travel to England, because the mother’s father was terminally ill. The mother and the children arrived in England on the 21st of July 2017, on tickets which provided for a return to Australia within 6 months. The mother’s father died on the 2nd of September 2017. The father agreed that the mother could extend her stay with the children in England, apparently putting no time limit upon when she should return. On the 27th of March 2018 the mother sent the father an email making clear that she did not intend to return to Australia.

The father commenced his application under the Convention on the 10th of August 2018. The application was dealt with by Her Honour Judge Hillier in the High Court in October. She found that the mother had not formed the intention to retain the children in this country until March 2018, and that by that date the children were habitually resident in England and Wales. Accordingly, the father’s application was dismissed. The father appealed.

Giving the leading judgment of the Court of Appeal Lord Justice Moylan found that Judge Hillier had properly considered the evidence and was entitled to come to the conclusion that the mother had not formed the intention to retain the children in this country until March 2018. As to the issue of habitual residence, he found that Judge Hillier’s determination was one which was reasonably open to her. He said:

“She has undertaken a sufficiently broad assessment and explained why, in the context in particular of the children’s existing “real ties” with England, she concluded that their stability and integration “grew closer and faster as a result” and that the “centre” of their lives … had become England by late December 2017/January 2018.”

Lords Justices Flaux and Longmore gave consenting judgments. Accordingly, the father’s appeal was dismissed.

You can read the Court of Appeal judgment here, and the original judgment of Judge Hillier here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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