C (Children)

Wrongful retention under the 1980 Hague Convention can occur before the agreed date for a child’s return. Whether an anticipatory retention occurred is a practical question of fact, judged from the circumstances. It is not essential that the retaining parent communicate the intention to retain, or the acts said to implement it, to the other parent.

The court must identify an event of retention, but an inability to assign it to a particular day within a period does not prevent a finding that it occurred by the end of that period. An appellate court must address material contemporaneous evidence. The appeal was allowed and remitted for rehearing.

Following an agreed temporary stay in England, the mother did not return two children to Australia. The father sought their summary return under the 1980 Hague Convention.

The High Court held that retention occurred at the end of the agreed stay, but that the children were then habitually resident in England and Wales, so the Convention provided no remedy. The father appealed. The central issues were whether anticipatory retention could occur before the agreed return date, whether the evidence established such retention, and whether the finding of habitual residence was flawed.

Majority decision

1. The appeal was allowed and the case was remitted to the Family Division for rehearing before a different judge. All three judges accepted that wrongful retention may occur before the previously agreed return date.
2. Anticipatory retention is a practical question of fact. The court must assess the evidence and circumstances as a whole. Communication to the other parent of an intention to retain, or of acts taken in furtherance of that intention, is often relevant but is not an essential precondition.
3. The judge had failed to address the substance and implications of the contemporaneous solicitor’s letter and supporting documents submitted with the children’s British citizenship application. Those materials were prima facie evidence of an intention not to return and potentially of retention. His conclusion concerning 4 November 2015 therefore could not rationally be supported. He was also wrong to treat the absence of a precisely identifiable day in April as preventing a finding that retention occurred by the end of that month.
4. The finding that the children were habitually resident in England and Wales by 28 June 2016 was upheld. Habitual residence is principally factual. Stability, rather than permanence, is required, and an intended temporary stay is not necessarily inconsistent with habitual residence. The appellate court would not interfere because the lower court had applied the correct principles and its conclusion was reasonably open to it, consistently with Re B [2016] UKSC 4 and Re R [2015] UKSC 35.
5. The rehearing was to begin by determining whether retention occurred before 26 June 2016. If not, the children’s English habitual residence meant that the Convention could not provide a return remedy. If so, the court would determine habitual residence at the relevant date and then address Articles 3, 4 and, if applicable, 13.

Dissent

Lady Justice Black would have dismissed the appeal. She accepted the possibility of anticipatory retention but considered that an uncommunicated private decision was insufficient. Lady Justices Sharp and Thirlwall rejected communication as an essential requirement.

• Court of Appeal (Civil Division): By a majority, allowed the appeal and remitted the case for rehearing before a different Family Division judge.
• High Court of Justice, Family Division: HHJ Bellamy, sitting as a deputy High Court judge, refused the father’s application for summary return by order dated 10 November 2016; judgment reported at [2016] EWHC 3535 (Fam) .