Father v Mother

Consent to a child’s removal under the Hague Convention must be assessed in the realities of family life, not by contractual principles or an assumed duty of complete disclosure. Consent must be clear and unequivocal, but informal and imperfectly expressed arrangements may still amount to consent.

Repudiatory retention requires an objectively identifiable act or statement which manifests a denial of the other parent’s rights. A private intention is insufficient. Habitual residence is a child-focused question of factual integration in a social and family environment. Emotional unhappiness does not prevent integration. The inherent jurisdiction may permit return outside the Convention, but it should be exercised sparingly and only on an adequate welfare evidential basis.

The father applied for the summary return of two children to Australia. The children had lived in Australia until the family moved to England in April 2019. The father alleged that his consent had been obtained by deception, that the mother had later repudiated an agreement to return, and that the children were not habitually resident in England.

The mother denied any deceptive plan. She said the move was intended to last approximately two years, subject to review, and that the children became integrated into life in England. The father alternatively sought return under the inherent jurisdiction. The issues concerned consent, the terms of the move, repudiatory retention, habitual residence and discretionary return.

1. Consent. The principles in Re P-J [2010] 1 WLR 1237 governed the enquiry. Consent must be clear and unequivocal, may be given in advance, must remain operative at removal, and is a fact-specific question assessed in the context of family life. The court rejected a contractual or uberrimae fidei analysis. The father plainly consented to the move, and the mother’s undisclosed thoughts about a possible future divorce did not vitiate that consent.
2. Terms of the move. The parents had no formal agreement. They probably contemplated a limited but indefinite period of about two years, with no fixed mechanism for ending it. The lack of precise terms meant that the mother’s later decision not to return to Australia was not a repudiation of a sufficiently clear agreement.
3. Repudiatory retention. Applying Re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2018] UKSC 8, repudiatory retention is legally possible but requires an objectively identifiable act or statement manifesting denial of the other parent’s rights. A merely internal intention is insufficient. Any possible repudiation could only have occurred when the mother decided to divorce, not when she was merely considering that possibility.
4. Habitual residence. The court adopted the summary in Re B (A child) (Custody Rights: Habitual Residence) [2016] 4 WLR 156. The children’s integration in school, family life and ordinary activities in England was overwhelming. Parental intention was relevant but not determinative. Unhappiness, behavioural difficulties and a wish to return to Australia did not negate habitual residence.
5. Inherent jurisdiction. Although Re NY [2019] 3 WLR 962 confirmed the power to order return outside the Convention, the court should be slow to exercise it. There was insufficient welfare evidence. The application was dismissed, without prejudice to an application under the Children Act for a specific-issues order concerning relocation.