S (A Child)

Under the 1980 Hague Child Abduction Convention, repudiatory retention depends on whether the travelling parent has denied or repudiated the other parent’s custody rights by unilaterally deciding where the child will live. A decision to stay permanently may be evidence, but is not essential. Consent and acquiescence are distinct. Acquiescence depends on the wronged parent’s actual state of mind and must be assessed from all the circumstances, with particular weight ordinarily given to contemporaneous words and conduct. Habitual residence is a child-focused factual inquiry into integration in a social and family environment. Stability, rather than permanence, is relevant. A summary process remains subject to a duty to address every issue necessary to determine wrongful retention, habitual residence and any defence.

A Polish father and mother disputed the habitual residence of their seven-year-old son after he travelled with the mother to England in July 2018 and remained there. The father retained the child during an April 2019 visit, but the child returned to England in May. The father then sought a return order under the 1980 Hague Child Abduction Convention.

The Deputy High Court Judge ordered return to Poland, finding a repudiatory retention in November 2018, alternatively in May or June 2019, and rejecting consent. He did not separately determine acquiescence, settlement or the possibility of an earlier retention. The mother appealed, challenging the analysis of retention, habitual residence, consent and acquiescence.

Disposition. The appeal was allowed. The father’s return application was remitted for rehearing, unless the parents reached an agreement.

1. Repudiatory retention. The critical question is whether one parent has acted in a way which repudiates the other parent’s custody rights. The travelling parent must be denying the temporary nature of the stay and insisting unilaterally on deciding where the child will live. A decision to make the stay permanent may form part of the analysis, but is not a necessary feature. The judge’s focus on permanence meant that he failed to address whether retention had occurred in August 2018. The court applied Re C (Children: Anticipatory Retention) [2018] UKSC 8, [2019] AC 1.
2. Acquiescence. Consent and acquiescence are distinct concepts. Under Article 13, acquiescence depends on the wronged parent’s actual state of mind. Subjective intention is a question of fact. Contemporaneous words and actions ordinarily carry greater weight than bare assertions. The exception is where words or conduct clearly and unequivocally show, and lead the other parent to believe, that the right to summary return is not being asserted and are inconsistent with return. The judge had conflated acquiescence with consent and had not determined the issue sufficiently. The court followed the approach in Re H (Minors) (Abduction: Acquiescence) [1998] AC 72.
3. Habitual residence. Habitual residence requires a broad, child-focused evaluation of the circumstances relevant to the child’s integration in a social and family environment. Relevant matters include the duration, regularity, conditions and reasons for the stay and family move, nationality, schooling, language and family and social relationships. Parental purposes and intentions are only among the relevant factors. Stability, not permanence, is required, and there is no prescribed minimum period of residence or requirement of an intention to remain permanently. The judge’s analysis focused almost entirely on the mother’s intentions and did not sufficiently address the child’s position. He also made no express finding about habitual residence in November 2018.
4. Rehearing. The likely questions were the date of retention, the child’s habitual residence at that date, subsequent acquiescence or consent, whether return should nevertheless be ordered, and settlement if proceedings were issued more than one year after retention. The circumstances were far from engaging Article 13(b).

1. Court of Appeal (Civil Division): Appeal allowed and the father’s application under the 1980 Hague Child Abduction Convention remitted for rehearing.
2. High Court of Justice, Family Division: The Deputy High Court Judge ordered the child’s return to Poland, finding a repudiatory retention in November 2018, alternatively in May or June 2019.