P and O (Child Abduction: Anticipatory Breach)

For the purposes of the Hague Convention, wrongful retention is an event occurring on a specific occasion. The judgment declined to recognise a binding legal principle of anticipatory breach by which an earlier act or intention automatically constitutes wrongful retention before the agreed period has expired. In any event, the mother’s citizenship application, her statement that she would not return in May, and her uncommunicated feeling by April did not establish an anticipatory breach on the evidence.

By the relevant date, the children had acquired habitual residence in England. The decisive inquiry was factual and centred on their integration into a social and family environment. The Convention therefore did not apply.

The children were taken from Australia to England with the father’s consent for an initially limited period. The father later agreed to an extension, but the parties were uncertain whether the agreed period ended on 4 May or 28 June 2016. The children remained in England, obtained British citizenship, and became integrated into life there.

The father applied under the Convention for their summary return, contending that the children had been wrongfully retained on an earlier date. The mother argued that any retention occurred only after the agreed period and that the children were then habitually resident in England. The central issues were whether anticipatory breach could amount to wrongful retention and whether the children had acquired habitual residence in England.

1. Anticipatory breach. The court accepted that wrongful retention is an event, not a continuing process, and that a specific occasion must be identified. It was persuaded by the analysis in BP v DP that the authorities did not establish a binding legal principle of anticipatory breach.
2. The court nevertheless considered the father’s first three proposed dates on the assumption that anticipatory breach might be available. The citizenship applications did not amount to wrongful retention. Registration under section 3(2) of the British Nationality Act 1981 was an entitlement if the statutory criteria were met, rather than a discretionary decision influenced by the solicitor’s letter. The mother’s failure to consult the father was criticised, but it did not establish wrongful retention.
3. The mother’s statement on 11 February 2016 that she would not return in May did not necessarily indicate an intention to remain indefinitely, given the parties’ uncertainty about the duration of the agreed extension. Her evidence that by April she felt they would not return was both imprecise and uncommunicated. It could not identify a specific retention event.
4. The court found, on balance, that the agreed year expired on 28 June 2016. By then the children had acquired habitual residence in England. Applying the propositions adopted from Re B (A Minor)(Habitual Residence), the court focused on the children’s integration, stability and social and family environment. Their life in England was stable and secure, while their connection with Australia had become minimal.
5. Because the children were habitually resident in England on the relevant date, their continued presence there was not wrongful retention within Article 3. The Convention did not apply, and the father’s application was dismissed. It was unnecessary to determine the mother’s Article 13 defences.

First instance decision. No prior judicial decision is stated in the judgment.