In the matter of C (Children)

The summary-return procedure under the Hague Convention on the Civil Aspects of International Child Abduction 1980 is unavailable if, immediately before the alleged wrongful removal or retention, the child was habitually resident in the requested state.

A retention may become wrongful before the agreed return date. This occurs when the travelling parent intends not to return the child and objectively manifests a repudiation of the left-behind parent’s custody rights. Communication to that parent is unnecessary, but an unmanifested private intention is insufficient.

Habitual residence remains a factual question centred on the child’s integration. Once the objectively identifiable wrongful retention occurs, the Convention’s one-year period begins, although its exact date may be expressed as no later than an identified point.

The parents lived in Australia with their two children. The father agreed that the mother could take the children to England, initially for eight weeks and later for approximately one year. Before that period expired, the mother decided not to return. Her solicitors had previously applied for the children’s British citizenship and told the immigration authorities that their centre of life was and would remain in the United Kingdom.

The High Court dismissed the father’s application for summary return under the Hague Convention on the Civil Aspects of International Child Abduction 1980: [2016] EWHC 3535 (Fam). The Court of Appeal held that an early repudiatory retention was legally possible and remitted the case for further factual inquiry: [2017] EWCA Civ 980; [2017] 3 FCR 719.

The issues were whether the Convention could apply after the children had become habitually resident in England, and what intention and outward manifestation were required for a retention to become wrongful before the agreed return date.

1. Disposition. By a majority of three to two, the mother’s appeal was allowed and the father’s cross-appeal was dismissed. Lord Hughes delivered the majority judgment, with which Lady Hale and Lord Carnwath agreed.

2. The Convention’s summary-return procedure presupposes that, immediately before the alleged wrongful act, the child was habitually resident in a state other than the requested state. Its purpose is to reverse an international abduction promptly and leave decisions on the merits to the courts of habitual residence. If habitual residence has already shifted to the requested state, that state has primary jurisdiction and there is no room for mandatory return elsewhere without consideration of the merits.

3. A retention can become wrongful before the agreed return date. The left-behind parent who permits temporary travel exercises custody rights on the condition that the child will return. A travelling parent repudiates those rights by abandoning the temporary arrangement, retaining the child without an intention to return and claiming unilateral authority over where the child will live.

4. Repudiatory retention requires a subjective intention not to return and an objectively identifiable act or statement manifesting denial of the left-behind parent’s custody rights. The manifestation need not be communicated to that parent and may be concealed. A private, unmanifested decision is insufficient. The wrongful retention must be an identifiable event, although the court may find only that it occurred no later than a particular date. Once found, that is the date from which the article 12 period runs.

5. The one-year period in article 12 is not a limitation period protecting a wrongdoer. It serves the child’s interests by making return discretionary, rather than mandatory, after settlement in the new environment. Concealment of the wrongful act may be considered when that discretion is exercised.

6. The trial judge erred in treating the mother’s immigration application as significant only to regularising the children’s stay. Its contents were capable of manifesting repudiation. Nevertheless, the judge was entitled, having heard the mother, to find that she had not formed a settled intention not to return when the application was made. Her later private decision, reached by about April, lacked an objective manifestation. By the eventual wrongful retention at the end of June, the children were integrated in England and habitually resident there. The Convention application therefore failed.

7. Lord Kerr and Lord Wilson dissented as to disposal. They considered that the judge had failed adequately to confront the November correspondence and would have dismissed the mother’s appeal, leaving the Court of Appeal’s remittal in place.

1. United Kingdom Supreme Court: In In the matter of C (Children) [2018] UKSC 8, the mother’s appeal was allowed and the father’s cross-appeal was dismissed by a majority of three to two.
2. Court of Appeal: In [2017] EWCA Civ 980; [2017] 3 FCR 719, the court unanimously recognised repudiatory retention. By a majority, it set aside the judge’s conclusion that none had occurred and remitted the case for further inquiry.
3. High Court, Family Division: In [2016] EWHC 3535 (Fam), the judge held that repudiatory retention was not recognised in law and, alternatively, had not occurred. He found that the children were habitually resident in England by the agreed return date, so the Convention application failed.