A father asked the English court to order the summary return of his two children to Australia under the Hague Convention after their mother, who had brought them for an agreed stay of up to a year, decided that they would not go back. The Supreme Court held that the Convention cannot require summary return if, when the alleged wrong occurred, the children were already habitually resident in the country hearing the case, but that wrongful retention can occur before an agreed return date. By a majority, the father’s Convention application failed.
The agreed stay
The children travelled from Australia to England with their mother. Their father agreed that their stay could extend to a year. During that time they began to settle in England.
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During the agreed stay the mother applied for British citizenship for the children. Her solicitors told the immigration authorities that the children’s future was in the UK. Whether this outward statement reflected a settled decision not to return was central to the appeal.
The parents subsequently exchanged messages about a return date. By the time the case was heard, the mother accepted that she did not intend to return. The father applied for summary return under the Hague Convention.
The Convention
The Convention, given effect in England and Wales by the Child Abduction and Custody Act 1985, aims to protect children from wrongful removal or retention and to secure their prompt return so that decisions about their future are made in the correct state. A removal or retention is wrongful if it breaches rights of custody under the law of the state where the child was habitually resident immediately beforehand, and those rights were being exercised, or would have been but for the removal or retention. If proceedings start within a year, the requested court must order return forthwith, subject to limited exceptions. The return is summary: the requested court does not decide the merits of the custody dispute.
Habitual residence in England
Lord Hughes, with whom Lady Hale and Lord Carnwath agreed, explained that a child will usually still be habitually resident in the home state when the alleged wrong occurs. A longer agreed stay may, however, mean that the child has become habitually resident in the destination state first. The old assumption that one parent could not unilaterally change a child’s habitual residence no longer stands. Habitual residence is a question of fact, depending on integration in the new country.
The Court held that the Convention does not require a court to order summary return from the state in which the children were already habitually resident immediately before the alleged wrong. At that point, the authorities of the new state have primary jurisdiction to decide their future.
Retention before the agreed date
Could the stay become wrongful while consent still appeared to run? The Court of Appeal recognised that it could, and ordered a fresh examination of the evidence about when the mother had decided not to return.
Lord Hughes called this repudiatory retention and held that it is possible. Agreement to a temporary stay is an exercise of the left-behind parent’s custody rights, including the right to take part in any decision about where the child lives. While the travelling parent honours the temporary arrangement, there is no breach. Once that parent repudiates it, keeps the child with no intention of returning, and denies that the stay is temporary, the retention is no longer on the agreed terms. It becomes a claim to decide unilaterally where the child will live, and it is wrongful. Making the left-behind parent wait until the agreed return date would allow the very pre-emption the Convention is meant to prevent.
There must be a subjective intention not to return, or not to honour some other fundamental part of the arrangement. A purely private decision is not enough. There must be an objectively identifiable act or statement, or a combination of them, manifesting the denial of the other parent’s custody rights. It need not be communicated to that parent: a statement to a third party may suffice, and requiring communication would reward concealment. Because the one-year period in article 12 must be counted from a wrongful retention, the retention must be an identifiable event rather than a continuing process. The exact day need not be pinned down. The court may find that it occurred not later than a particular date. Once that date is found, the left-behind parent cannot choose the agreed return date instead.
How the majority applied the law
The trial judge rejected the concept of early retention but considered what the evidence showed if it existed. An immigration application was necessary for the agreed stay. The important question was whether the statements made in support of it manifested an intention to keep the children indefinitely.
Having heard the mother, the judge accepted that she had not made up her mind at the time of the letter. When she later decided against returning, there was no corresponding outward act established at that point. The majority saw no sufficient basis to disturb the judge’s assessment.
The judge found that the children were habitually resident in England and Wales by the end of June 2016, which he treated as the end of the agreed year. By then they had lived there for more than a year and were integrated into family and social life. Lord Hughes held that there was no basis for disturbing that finding. By the time they were retained inconsistently with the father’s custody rights, they were habitually resident in the United Kingdom, so the Convention application could not succeed.
Why two justices disagreed
Lord Wilson would have dismissed the mother’s appeal. He regarded the solicitor’s letter of 4 November 2015 as a major obstacle to a finding that she had not by then intended to keep the children in the United Kingdom indefinitely, and considered that the judge had not grappled with it. He would have upheld the order for a further inquiry into whether there was a repudiatory retention, particularly in November 2015, and into whether the children were already habitually resident in the United Kingdom immediately before any such retention.
Lord Kerr would also have dismissed the appeal. He considered that the judge’s rejection of the legal concept had coloured the facts, that the judge had himself said the mother had decided by around April 2016 to remain, and that the judge had never properly asked what the November letter showed about her intention. In his view the case had to be remitted.
Verdict: The Court allowed the mother’s appeal by three votes to two and dismissed the father’s cross-appeal. His application for summary return failed. The dissenting judges would have ordered a fresh inquiry into the timing of retention.
