H (Abduction: Retention In Non-Contracting State), Re

The Hague Child Abduction Convention 1980 may apply where a child habitually resident in a Contracting State is wrongfully removed to, or wrongfully retained in, a non-Contracting State and later brought to a Contracting State. The essential conditions are habitual residence in a Contracting State, wrongful removal or retention, proceedings in the Contracting State where the child is, and the Convention being in force between the relevant States. A retention remains wrongful and justiciable after the child enters that State, although retention is an event occurring on a specific occasion for Article 12. Article 1 states the Convention’s objects but does not limit its operative provisions.

The family travelled from Australia to Uganda in November 2017. On 23 January 2018, the mother did not return to Australia with the child. The father later persuaded her to travel with the child to England, where they arrived in March 2018. The father commenced proceedings under the Convention in November 2018.

Mostyn J held that the child was habitually resident in Australia and had been wrongfully retained in Uganda. He rejected the mother’s arguments based on acquiescence and Article 13(b), and ordered the child’s return to Australia. He also held that the retention became justiciable in England. The mother appealed on the territorial scope of the Convention and the characterisation of retention as an event occurring on a specific occasion.

1. Appeal dismissed. Mostyn J was right to hold that the wrongful retention in Uganda was justiciable in England. Leggatt LJ and McCombe LJ agreed with the judgment of Moylan LJ.
2. The essential conditions for applying the Convention are that:
   • the child was habitually resident in a Contracting State at the date of the alleged removal or retention;
   • the removal or retention was wrongful;
   • the application is determined in the Contracting State where the child is; and
   • the Convention is in force between the relevant States.
3. There is no requirement that removal be to a Contracting State or that retention occur in one. The Convention may therefore apply where a child is removed from a Contracting State to a non-Contracting State and is later taken to a Contracting State. This does not extend the Convention to the non-Contracting State, because the Convention is applied only between participating States. It remains unavailable where the child’s home State is not a Contracting State, as explained in In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80.
4. Article 1 identifies the Convention’s purposes but does not define or restrict the scope of its operative provisions. Article 3 defines wrongful removal and retention by reference to custody rights and the child’s habitual residence, without prescribing the place or manner of the removal or retention. The Convention’s structure focuses on securing return through the authorities of the Contracting State where the child is.
5. Article 12 makes removal and retention events occurring on a specific occasion for calculating the relevant period. That does not prevent a wrongful retention from continuing to be wrongful and justiciable after the child has moved to a Contracting State. The language used by Mostyn J did not convert retention into a continuing state of affairs.
6. The Court of Appeal distinguished the broader reading advanced from the observations in In re H (Minors) (Abduction: Custody Rights); In re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476, and did not follow the contrary unreported decision of Mr Goodwin QC. The purposive approach recognised in Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224 supported rejecting an artificial technical obstacle which could facilitate evasion of the Convention.

• Court of Appeal (Civil Division): on 16 April 2019, dismissed the mother’s appeal and upheld the order for the child’s return to Australia.
• High Court of Justice, Family Division (Mostyn J): on 28 February 2019, held that the child had been wrongfully retained in Uganda and ordered return under the Convention.