Last week The Supreme Court handed down judgment in the matter of C (Children) [2018] UKSC8. The appeal concerns the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) and raised questions as to the habitual residence of the children in the case and whether a wrongful retention in fact occurred, and if so when.

The Convention provides a framework for left behind parents to apply for the return of children who have been wrongfully removed or retained in States that are signatories to the Convention. In essence, the removal or retention of the child is wrongful if it is in breach of the rights of custody of the parent who is left behind. The child must have been habitually resident in the State origin immediately before the removal or retention.

The convention enables the left-behind parent to make an application to the Central Authority in their home State for the return of the child to the State of origin. Where it is established that the removal or retention of the child is wrongful, the courts of the destination State are required to order the return of the child immediately unless the travelling parent is able to make out one of the ‘defences’ under the Convention. The Convention therefore provides for a summary process; the court of the destination State is not required to make a welfare-based decision, unless a return is not ordered, because those decisions are the jurisdiction of the court of the State of the child’s habitual residence.

These are complex legal concepts and parents should seek legal advice immediately if they have any concerns that their child has already been, or might in future be removed to or retained abroad against their wishes. The Family team at Bindmans are specialists in the field of child abduction and are able to advise parents if such issues arise.

The essential facts of this case were that the parents and children lived in Australia. The father initially agreed to the mother taking the children to England for an eight-week visit in May 2015. Whilst the children were in England, the father sent an email in June 2015 confirming his agreement for the children to remain in England for a further year. The mother gave notice to her Australian employer and enrolled the older child at school in England in September 2015. In November 2015, the mother applied for British Citizenship for the children and the mother’s solicitors wrote a letter in support of the application stating that she and the children could not return to Australia for fear of domestic violence. The father pressed the mother for the date of return and in June 2016 she informed the father that she intended to remain in England. The father then made an application for the summary return of the children to Australia pursuant to the Convention. In her oral evidence in the High Court, the Judge accepted the mother’s evidence that by April 2016 she had felt that she would not be going back to Australia with the children.

The Supreme Court considered two general questions about this case: first, whether a summary return under the Convention is available, if by the time of wrongful removal or retention the child is habitually resident in the destination State. The Supreme Court found that the Convention could not be invoked in these circumstances. In these cases, the courts of the destination State would have jurisdiction to make welfare decisions about the child and a summary return would not be available. Nonetheless, Lord Hughes explained that, in making welfare decisions about the child, the court of the destination State may still determine that it is in the interests of the child to be returned to the State of origin.

The second question related to whether and when the retention in the destination State can become wrongful for the purposes of the Convention before the expiry of any agreed or sanctioned terms of stay there. Lord Hughes’ leading judgment confirmed that ‘repudiatory retention’ is possible in law, and that it occurs when the travelling parent repudiates the temporary nature of the stay and sets about making it indefinite, often putting down the child’s roots in the destination State with a view to making it impossible to move him home. According to Lord Hughes, this is engaging in an act of pre-emptive denial of the rights of the custody of the left-behind parent.

Lord Hughes also considered the effect of repudiatory retention on the ‘settlement defence’ under the Convention, that is, where proceedings have commenced 12-months after the date of wrongful removal or retention, the court has a discretion not to order a summary return. Lord Hughes confirmed that it would follow that once repudiatory retention occurs, the 12-month clock in relation to the ‘settlement defence’ would begin to run at that point.

As to what constitutes a repudiatory retention, Lord Hughes confirmed that it is a matter of evidence. An objectively identifiable act of repudiation is required but it need not be communicated to the left-behind parent.

It was, however, held in this case that there was no repudiatory retention on the basis that, there could not have been a wrongful retention in April 2016 because the mother’s internal thinking was not enough by itself to constitute an act of repudiation. If the mother had the intention to remain in England at the time of the application for the children’s British citizenship in November 2015, the application could have amounted to a repudiatory retention but the High Court believed the mother’s evidence that she did not possess this intention in November 2015 and was not inclined to overturn the Judge’s finding in this respect. It was therefore held that the father’s application could not be successful because the children were habitually resident in England in June 2016 by the time of the expiration of the father’s agreement.

Interestingly, the Supreme Court was not unanimous in its decision. Lord Kerr and Lord Wilson each give judgments concurring on the two points of principle but dissenting on the outcome of this case on its facts. They both considered that on the facts, the conclusion that the mother had not formed any intention to retain the children in England in November 2015 was insupportable in view of her solicitors’ letter to the immigration authorities in support of her application for the children’s British Citizenship. Lord Kerr also expressed misgivings that repudiatory retention requires an overt act.