A (Hague Convention: Wrongful Retention)

Where a parent agrees that a child may remain abroad for an identifiable temporary period, the retention is not wrongful during that period merely because the left-behind parent later withdraws consent and demands return. Wrongfulness arises if the travelling parent repudiates the temporary nature of the arrangement and pre-empts the left-behind parent’s custody rights. The court must identify the specific event of wrongful retention and assess habitual residence at that date. A valid agreement acted upon cannot retrospectively become invalid because one parent changes their mind. If an Article 13 exception is established, the court retains a broad discretion, informed by Convention policy and the child’s rights and welfare.

The father sought the summary return of his daughter to the Russian Federation under the 1980 Hague Convention. The child had been removed from Russia to Moldova without his agreement, but he later signed a formal consent permitting her to travel from Moldova to England and remain abroad for one year. The mother and child arrived in England in July 2018. The father later demanded return, and the mother manifested a settled intention to remain in England on 20 January 2019.

The central issues were whether the child’s retention became wrongful before the agreed expiry date, where she was habitually resident on the relevant date, and whether settlement or Article 13 defences would otherwise prevent return.

1. The application for summary return was dismissed. The father’s initial custody rights were engaged by the mother’s removal of the child from Russia to Moldova, but his subsequent informed consent to travel from Moldova to England for up to twelve months amounted to acquiescence in the child’s retention outside Russia.

2. Removal and retention are mutually exclusive events. A child removed and retained abroad pursuant to an agreement for an identifiable period is not wrongfully retained during that period merely because the left-behind parent later withdraws consent and demands return. The relevant question is whether the travelling parent’s response amounts to a repudiatory breach which pre-empts the temporary nature of the stay. The mother did not form or manifest such an intention until 20 January 2019.

3. The child was habitually resident in England by 20 January 2019. Habitual residence required a factual assessment of integration in a social and family environment, including stability, schooling, family relationships and the circumstances of the move. By the relevant date the child had a stable home with her maternal family, was attending school and was integrated into her English environment.

4. Had it been necessary to decide the defences, the child was settled in England when proceedings were issued. The court would also have found a grave risk of harm or intolerability under Article 13(b), based on the assumed risk of coercive and controlling behaviour towards the mother and its consequent effect on the child. The proposed protective measures lacked sufficient reliability.

5. If discretion had arisen, it would have been exercised against return. This was not a prompt “hot chase” case, and the English courts and welfare evidence were better placed to address the child’s future arrangements.