Family analysis: Michael Gration, barrister, of 4PB, examines the Supreme Court’s decision in Re C (children: anticipatory retention)  UKSC 8 that the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention) cannot be invoked if, by the time of the alleged wrongful removal or retention, the child has become habitually resident in the requested state, and its decision that there can be wrongful retention before the expiry of the period of absence agreed by the parents.
What are the practical implications of the decision?
Following this judgment, it is now clearly established that:
- a child’s habitual residence can change following an international move, notwithstanding that the left-behind parent may not agree to such a change
- a child’s habitual residence can change following an international move that is only intended to be temporary or for a defined purpose, and
- the question of whether or not a child’s habitual residence has changed is a question of fact
Accordingly, parents, and lawyers advising parents, must be aware that if they agree to a child moving abroad, even if only for a defined period or for a particular purpose (for example while a mother is on maternity leave, or while one of the parents works on a fixed-term contract—though there are innumerable other examples) the child’s habitual residence may change.
In accordance with the decision in this case (though it only follows what has been the clearly established practice for the life of the 1980 Hague Convention), once a child’s habitual residence has changed, the left-behind parent will no longer be able to pursue the summary return of that child pursuant to the 1980 Hague Convention. As such, it will be of fundamental importance to consider:
- how the position of a parent who is considering agreeing to a temporary move can be safeguarded, and
- what safeguarding conditions might be put in place
The 1980 Hague Convention is now supported by two other international instruments that are of fundamental importance—Council Regulation (EC) 2201/2003 (Brussels II bis) and the 1996 Hague Convention on Jurisdiction Applicable Law, Recognition and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention). Both of those instruments include jurisdictional rules and, of huge importance, schemes that allow for the recognition and enforcement of orders. They should be considered carefully when advising a parent in relation to a proposed temporary relocation. The safest course may be to obtain a court order defining the terms of any such travel prior to the departure of the children, though of course it is recognised that this will not always be possible or desirable.
The concept of wrongful retention before the agreed period of absence expires (what Lord Hughes referred to as ‘repudiatory retention’) will need careful consideration when advising parents who have brought children to England as part of an agreed stay of temporary or undetermined duration. If such a parent has come to see a lawyer, they will probably have already formed an intention to retain the children at the conclusion of the agreed period (or at least they will be seriously considering it) and the visit to a solicitor’s office may later be said to be just the kind of overt act which manifests the repudiatory retention that Lord Hughes, giving the lead judgment in this case, sought to describe.
What was the background?
A British mother and an Australian father had two children while living together in Australia. Their relationship then broke down and, shortly after, the mother sought permission from the father to take the two children to England so that she could stay with her mother while she completed her maternity leave.
The father agreed to the children travelling to England for four weeks, then extended that permission to eight weeks, before ultimately agreeing to them remaining in England for one year.
While the children were in England, the mother took various steps that the father said demonstrated her intention not to return the children to Australia. Particularly, she applied to the authorities for citizenship for the children. The father also said that in their communications she was vague about when she intended to return.
When the mother failed to return the children to Australia at the conclusion of the agreed period, the father made an application for the return of the children pursuant to the 1980 Hague Convention. At first instance, the judge (HHJ Bellamy) held that there was no concept in law of, as he termed it, anticipatory breach of rights of custody, ie where two parents agree to a defined period of travel, there could be no wrongful retention until the conclusion of that period (see Re P and O (Child Abduction: Anticipatory Breach)  EWHC 3535 (Fam)).
He went on to find that, if he was wrong about that, the mother had not formed an intention to retain the children until late in the agreed period, by which time the children had become habitually resident in England. He therefore dismissed the father’s application. The father appealed to the Court of Appeal which overturned the decision at first instance, and remitted the matter for further consideration (see Re C (children: anticipatory retention)  EWCA Civ 980,  All ER (D) 94 (Jul)). The mother appealed to the Supreme Court on two primary grounds:
- the Court of Appeal was wrong to hold that there was such a concept as anticipatory retention, as the Court of Appeal termed it, and
- even if there was such a concept, the Court of Appeal was wrong to disturb HHJ Bellamy’s findings as to whether, and if so when, the mother had retained the children
What did the Supreme Court decide?
The court determined two questions on this appeal:
The first issue concerned the relevance of the child’s habitual residence to an application made pursuant to the 1980 Hague Convention. The court phrased the question as follows:
‘What is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs?’
This issue arose because at first instance the judge had found that the children had become habitually resident in England before the mother had retained them, as a result of which the father’s application for their return to Australia had been dismissed. In the course of argument, Lord Carnwath raised a question as to whether it was a prerequisite for a 1980 Hague Convention application to succeed that the subject child or children remained habitually resident in the country of origin at the time of the removal or retention or whether, alternatively, the child’s habitual residence simply identified the law that had to be applied when determining whether or not the applicant parent had rights of custody at the relevant time.
The court unanimously held that:
‘The Convention cannot be invoked if by the time of the alleged wrongful act, whether removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to make a decision on the merits, based on the habitual residence of the child and there is no room for a mandatory summary return elsewhere without such a decision.’
The second issue concerned whether or not a parent who has removed a child from the country of their habitual residence for an agreed period could wrongfully retain a child at a point in time before the expiration of the agreed term—Lord Hughes’ ‘repudiatory retention’. The court phrased the question in this way:
‘If a child has been removed from their home state by agreement with the left-behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires?’
In the case before the court, it was alleged by the father that, while the mother had failed to return the children to Australia at the conclusion of the agreed period, she had in fact decided that she was not going to return them at a much earlier point in time. This issue was of fundamental importance to the case because, as it is now well established that a child’s habitual residence can change without the consent of both parents (as to which see the summary of the law in relation to habitual residence prepared by Hayden J in his judgment in Re B (a minor) (habitual residence)  EWHC 2174 (Fam),  All ER (D) 15 (Sep), if the father could establish that the mother had, in fact, retained the children at an earlier point in time than the expiry of the agreement, it would be less likely that the children had lost their Australian habitual residence and so more likely that his application would succeed.
In relation to the principled issue, the court held that:
‘The principled answer to the question whether repudiatory retention is possible in law is that it is. The objections to it are insubstantial whereas the arguments against requiring the left-behind parent to do nothing when it is clear that the child will not be returned are convincing and conform to the scheme of the Abduction Convention.’
Having decided that a repudiatory retention was possible as a matter of law, Lord Hughes went on to consider how the court might determine whether or not there had, in fact, been such a retention. He held that:
- a repudiatory retention required a subjective intention on the part of the retaining parent not to return the children at the expiration of the agreed period
- ‘a purely internal, unmanifested thought on the part of the travelling parent ought properly to be regarded as at most a plan to commit a repudiatory retention and not itself to constitute such’—there had therefore to be an objectively verifiable act (or acts) of retention
- the retention need not have been communicated to the left-behind parent, so long as there had been ‘some objectively identifiable act or statement, or combination of such, which manifests the denial, or repudiation, of the rights of custody of the left-behind parent’
Having determined that there could be a repudiatory retention, and how such a retention might be identified, Lord Hughes (with whom Lady Hale and Lord Carnwath agreed in this regard) held that there had not been such a repudiatory retention in this case.
Accordingly, the mother’s appeal was allowed, and the father’s 1980 Hague Convention application was dismissed. Lord Kerr and Lord Wilson concurred on the two points of principle but disagreed on the outcome, and in their dissenting judgments held that the matter should have been remitted to allow for further consideration of whether the mother had retained the children at any point in time prior to the expiration of the agreed period.
Michael Gration appeared with Henry Setright QC for the appellant mother in this case.
Interviewed by Robert Matthews.
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