G, Re (Rev 1)

Under the Hague Convention, retention is a specific event, normally occurring when a child is not returned at the end of an agreed limited stay. Withdrawal of return proceedings without adjudication does not, by itself, create an estoppel or amount to acquiescence. Acquiescence depends principally on the wronged parent’s actual state of mind, subject to the exception where words or conduct clearly and unequivocally indicate that summary return will no longer be sought.

The Article 13(b) threshold is high. The court must focus on grave risk to the child, not ordinary welfare considerations or the distress of the accompanying parent. Habitual residence is fact-sensitive. A newborn may acquire the habitual residence of a parent, but no universal rule applies where the parents are habitually resident in different countries.

The father applied under the Child Abduction and Custody Act 1985, the Hague Convention and the inherent jurisdiction for the return of two children, X and Y, to Canada. Earlier Convention proceedings concerning X had been withdrawn by consent during an attempted reconciliation. The mother remained in England, where Y was born, and the reconciliation failed.

The issues were whether X had been wrongfully retained, whether the father had acquiesced, whether X remained habitually resident in Canada, and whether return would expose X to an intolerable situation under Article 13(b). In relation to Y, the issues were whether there had been wrongful retention and whether Y was habitually resident in Canada.

1. X: wrongful retention and acquiescence. Retention is a specific event. On the evidence, X’s wrongful retention crystallised on 8 January 2007, when the mother obtained and served English residence and prohibited-steps orders after the father required return to Canada. The date was determined from the substance of the evidence, not the pleaded alternatives. Withdrawal of the first Convention proceedings was not an adjudication and did not create waiver, election, estoppel or res judicata. Applying Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72, the father had not subjectively acquiesced. The consent order expressly preserved his position and recorded that the parties were attempting reconciliation.
2. Habitual residence of X. X was habitually resident in Canada on 8 January 2007. The parties, properly represented and advised, had expressly recorded that position in the consent order.
3. Article 13(b). The defence required cogent evidence of a grave risk that return would expose X to an intolerable situation. The focus was X’s position, not the mother’s understandable distress. The psychiatric evidence did not establish a grave risk that the mother would become unable to care for X, particularly in light of the proposed undertakings and the availability of a prompt welfare hearing in Canada. X’s return was therefore ordered, subject to appropriate undertakings by the father.
4. Y: wrongful retention and habitual residence. The father had agreed that the mother could remain in England until at least three weeks after Y’s birth. No wrongful retention of Y could therefore occur before that period without a clear anticipatory indication. The first possible date was 10 July 2007. By the time of Y’s birth, the mother had acquired habitual residence in England for the agreed period. Applying the fact-sensitive approach to newborn children, Y acquired her mother’s habitual residence in England at birth. The Convention application in respect of Y was therefore not an application to return a child wrongfully retained from her habitual residence.
5. Inherent jurisdiction. The alternative application concerning Y would in substance have required an order sending her to Canada, potentially separating the children. Without a full welfare enquiry, no such order was appropriate.