JM v RM (Rev 1)

Wrongful retention under the Hague Convention, whether before or after the planned return date, requires a clearly agreed due date within an agreed finite period of care. Where that date is frustrated and no alternative date is substituted, an open-ended stand-off does not itself create retention. If the children become habitually resident in the requested state before a later operative retention, the Convention cannot be invoked for summary return. Alternatively, where retention is established, acquiescence is distinct from advance consent. It may consist of active ex post agreement or passive acceptance, assessed from the left-behind parent’s actual intention and outward conduct. Proof of acquiescence triggers a broad, case-specific discretion. Acquiescence carries great weight, while counter-abduction policy may carry relatively little weight.

The father applied under the 1980 Hague Convention for the summary return of two children to Australia. The mother had brought them to England with his agreement for a finite family visit, with return flights booked for 23 April 2020. The Covid-19 pandemic cancelled those flights, and the mother later decided to remain in England. The father did not stipulate an alternative return date before 1 August 2020, when he clearly stated that he wanted the children returned. The central issues were whether there had been a wrongful retention, whether the children were habitually resident in England when the operative act occurred, and, alternatively, whether the father had consented to or acquiesced in the retention and how the Convention discretion should be exercised.

The father’s application for the summary return of the children to Australia was dismissed on both the primary and alternative analyses.

1. Primary analysis. Wrongful retention, whether anticipatory or actual, requires a clearly agreed due date for return within, or immediately following, an agreed finite period of care. The original return date had been frustrated by the pandemic, and no alternative date or continuing insistence on return had been stipulated before 1 August 2020. There was therefore no operative retention during the intervening open-ended stand-off.
2. By 1 August 2020 the children were habitually resident in England. Applying the factors identified in Proceedings Brought By A [2010] Fam 42, including the duration and conditions of the stay and the children’s integration into family and social life, the requested state had become their state of habitual residence. Accordingly, following Re C (Children) [2019] AC 1, the Convention could not be invoked for a mandatory summary return.
3. Alternative analysis. If retention could have occurred in early May 2020, the mother’s email of 3 May was too ambiguous and equivocal to manifest an intention to retain, although her subjective intention had formed earlier. The children would not then have been habitually resident in England.
4. The father had not given advance, communicated consent to retention. However, on the facts he had subsequently acquiesced by passively going along with the children’s continued presence in England. His communications, financial support for accommodation and nursery, failure to stipulate a return date, and failure initially to issue child-arrangements proceedings in Australia supported that finding. Acquiescence was a question of actual subjective intention inferred from all the circumstances, with particular attention to outward conduct.
5. The resulting Convention discretion was at large and case-specific. The court accepted the framework in Re G (Abduction: Consent/discretion) [2021] EWCA Civ 139 and the general principle in In re M (Children) (Abduction: Rights of Custody) [2008] AC 1288. Acquiescence carried great weight; the Convention objectives and the benefit of decision-making in Australia carried little weight on these facts, particularly given Covid-19 difficulties and the children’s lengthy stay in England. A return order was therefore refused.

Not stated in the judgment.