Father v Mother

In Hague Convention proceedings, wrongful retention is assessed by identifying the date on which the left-behind parent’s consent ended or was repudiated. Consent is determined from the parties’ words and conduct, viewed in the common-sense context of family life. A private intention not to return children is insufficient for repudiatory retention without an objectively identifiable act or statement. Habitual residence is a fact-sensitive, comparative assessment focused on the child’s integration, stability, schooling, relationships and connections in each country. Parental intention is relevant but not determinative, and no minimum period is required. Where the children had become habitually resident in England before the alleged retention, the application for summary return failed.

The father sought the summary return of three children to Peru under the 1980 Hague Convention. The children, dual British and Peruvian nationals, had travelled from Peru to England in July 2024 for an intended holiday but remained there. The parents disputed whether the father had agreed to successive extensions, when any wrongful retention occurred, and whether the children remained habitually resident in Peru.

The mother relied on consent and, alternatively, the defences in article 13(a) and article 13(b). The central issues were the date and existence of any wrongful retention and the children’s habitual residence at that date.

1. Wrongful retention. The application was dismissed. The court found that the father had consented, albeit reluctantly and on an open-ended basis, to the children remaining in England beyond 30 December 2024. His words and conduct, including discussions about settling in England, renting out the family home and travelling to England, did not establish an earlier objection or demand for return. His consent was withdrawn only when he clearly demanded the children’s return on 5 October 2025.
2. Repudiatory retention. A private and uncommunicated intention not to return children does not itself constitute wrongful retention. There must be an objectively identifiable act, statement, or combination of acts and statements manifesting repudiation. Enrolling the children in school was not, in the circumstances, such an act because it was explicable by the mother’s temporary medical circumstances and extended stay.
3. Consent. Consent is assessed from the reality of the family situation and the parties’ words and conduct. It need not be written or expressed in particular terms. The court must consider the evidence holistically rather than isolate individual messages.
4. Habitual residence. Habitual residence is a question of fact requiring a comparative assessment of the children’s connections with Peru and England. Relevant considerations included stability, duration, schooling, language, nationality, family and social relationships, healthcare, parental circumstances and the reasons for the move. By 5 October 2025 the children had developed strong and lasting ties in England, were integrated into English daily life and had acquired the necessary stability. England had therefore become their habitual residence.
5. Because the children were not being wrongfully retained from their state of habitual residence, the Convention did not require their return. The court added that, if wrong on those conclusions, the mother would have established consent under article 13(a), and the court would not have exercised its discretion to order return.