TD v MT (Rights of Custody after Lawful Removal)

For an Article 3 retention, a child must have been lawfully removed and then retained outside the State of habitual residence contrary to a lawful requirement to return. The court must identify the alleged retention date and a specific event constituting the retention. A prospective procedural stay of a relocation order does not itself require return, or revive a parent’s former veto over residence, where the order has already been executed and neither the order nor domestic law imposes that obligation. Domestic law determines the rights held by the parent; English law gives those rights their autonomous Convention character. A right to veto international removal may constitute a right of custody, but access rights alone do not. The application was dismissed on the alternative grounds that there was no retention and that no rights of custody existed at the relevant date.

The father applied under the Child Abduction and Custody Act 1985 for the return of his nearly four-year-old child under the 1980 Hague Convention. The child’s mother had lawfully relocated the child from South Africa to England under a South African order permitting relocation without the father’s consent.

The father later filed an application for permission to appeal. Under South African law, that filing prospectively suspended the relocation order. The father contended that the suspension created a wrongful retention in England and restored his rights of custody. The mother sought summary dismissal as a preliminary issue. The court determined whether there had been a retention and, if so, whether the father had rights of custody which he was exercising at the relevant date.

1. Application dismissed. There was no act of retention on 17 February 2025. The child had been lawfully removed under the relocation order. The subsequent filing of the application for permission to appeal suspended that order prospectively, but did not make the earlier removal unlawful.
2. Retention requires continued absence contrary to a lawful requirement that the child be returned. The relocation order contained no requirement to return the child if its operation was later suspended. Section 18 of the Children’s Act 38 of 2005 imposed no such requirement. The procedural stay also did not require the father’s consent to the child remaining in England. The father therefore could not identify a specific event on 17 February 2025 constituting retention.
3. Alternatively, the father had no rights of custody at the relevant date. Domestic law determined the rights he held under South African law, while the question whether those rights were Convention rights of custody was determined by applying the autonomous meaning of the Convention in England and Wales.
4. Before the relocation order, the father’s veto over removal and ability to determine the child’s residence constituted rights of custody. The relocation order removed those rights and strengthened his access rights. Extensive access rights did not amount to rights of custody.
5. The prospective suspension did not revive the former veto or confer a right to require the child’s return. The right to apply for permission to appeal was not itself a right of custody. Any retention would therefore not have been wrongful under Article 3.
6. The judge also reiterated that an ultra-summary disposal of Hague proceedings is exceptional and appropriate only in very limited circumstances.