Hilary
Term
[2018] UKSC 8
On appeal from: [2017] EWCA Civ 980
JUDGMENT
In the matter of C (Children)
before
Lady Hale, President
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
14 February 2018
Heard on 9 and 10 October
2017
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Appellant
Henry Setright QC
Michael Gration
(Instructed by
Crosse & Crosse Solicitors LLP)
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Respondent
Charles Hale QC
Jacqueline Renton
Michael Edwards
(Instructed by
Ellis Jones Solicitors LLP)
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Intervener
(International Centre for Family Law, Policy and Practice)
(written
submissions only)
Christopher Hames
QC
Mark Jarman
(Instructed by
Stewarts Law LLP)
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LORD HUGHES: (with whom
Lady Hale and Lord Carnwath agree)
1.
This appeal concerns the Hague Convention on the Civil Aspects of International
Child Abduction (25 October 1980) (“the Abduction Convention”). It raises
general questions relating to:
(1) the place which the
habitual residence of the child occupies in the scheme of that Convention, and
(2) whether and when a
wrongful retention of a child may occur if the travelling parent originally
left the home State temporarily with the consent of the left-behind parent or
under court permission, and the agreed or stipulated time for return has not
yet arrived.
In addition, the facts of the present case raise particular
questions whether the trial judge’s conclusions were properly open to him upon:
(a) the habitual residence of
the children in the case; and
(b) whether a wrongful retention
in fact occurred, and if so when.
The 1980 Hague Abduction Convention
2.
The Abduction Convention is in force for some 97 States. Its preamble
records the desire of those States:
“to protect children
internationally from the harmful effects of their wrongful removal or retention
and to establish procedures to ensure their prompt return to the State of their
habitual residence …”
Article 1 states the objects of the Convention as follows:
“(a) to secure the prompt
return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of
custody and of access under the law of one Contracting State are effectively
respected in the other Contracting States.”
3.
The general scheme of the Convention is to enable a left behind parent
to make this application in the State to which a child has been taken, seeking
return of the child. States are required to set up Central Authorities to
transmit and receive such applications. Where the removal from the home State,
or the retention in the destination State is wrongful, the courts of the
recipient State are required by article 12 to order the return of the child
“forthwith”. Apart from a saving provision in article 20 which permits refusal
to return where such would amount to a breach of the requested State’s
fundamental principles of human rights, that obligation to return is subject to
very limited exceptions which, if present, enable (but do not require) return
not to be ordered. Those exceptions are found in article 13 (rights of custody
not being exercised; consent or acquiescence of the left-behind parent; grave
risk that return would expose the child to physical or psychological harm or
would place him/her in an intolerable situation; child’s objections), and in
article 12 (child has been in the recipient State for one year from the
wrongful removal or retention and is now settled there). Where prompt notice of
wrongful removal or retention is received, the recipient State is required by
article 16 to abstain from any decision on the merits of rights of custody,
unless it is determined that return is not to be ordered. Moreover, States are
required to act fast on any request. By article 11 an initial period of six
weeks is stipulated, and the applicant or his Central Authority are entitled to
an explanation from the recipient State if that period is exceeded. Thus the
return is summary and its object is to enable merits decisions as to the
child’s future to be made in the correct State, rather than in the State to
which the child has been wrongfully taken, or in which he/she has been
wrongfully retained. The general purposes and scheme of the Convention are
expanded upon in an explanatory report by Professor Elisa Pérez-Vera on the
work of the drafting conference, which report accompanied the original framing
of the Convention; it is accordingly an aid to construction recognised in
international law and in particular under article 32 of the Vienna Convention on
the Law of Treaties (1969). In England and Wales the Convention is given
domestic effect by the Child Abduction and Custody Act 1985, section 1(2).
4.
Four key concepts underlie the Convention: wrongful removal, wrongful
retention, rights of custody and return. The principal provisions which require
attention in the present case, apart from the preamble and article 1, set out
above, are articles 3, 4, 5, 12 and 16. So far as relevant, they say:
“Article 3
The removal or the retention of a
child is to be considered wrongful where -
(a) it is in breach of
rights of custody attributed to a person, an institution or any other body,
either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and
(b) at the time of removal
or retention those rights were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or retention. …”
“Article 4
The Convention shall apply to any
child who was habitually resident in a Contracting State immediately before any
breach of custody or access rights. The Convention shall cease to apply when
the child attains the age of 16 years.”
“Article 5
For the purposes of this
Convention -
(a) ‘rights of custody’
shall include rights relating to the care of the person of the child and, in particular,
the right to determine the child's place of residence;
(b) [rights of access]”
“Article 12
Where a child has been wrongfully
removed or retained in terms of article 3 and, at the date of the commencement
of the proceedings before the judicial or administrative authority of the
Contracting State where the child is, a period of less than one year has
elapsed from the date of the wrongful removal or retention, the authority
concerned shall order the return of the child forthwith.
The judicial or administrative
authority, even where the proceedings have been commenced after the expiration
of the period of one year referred to in the preceding paragraph, shall also
order the return of the child, unless it is demonstrated that the child is now
settled in its new environment. …”
“Article 16
After receiving notice of a
wrongful removal or retention of a child in the sense of article 3, the
judicial or administrative authorities of the Contracting State to which the
child has been removed or in which it has been retained shall not decide on the
merits of rights of custody until it has been determined that the child is not
to be returned under this Convention or unless an application under this
Convention is not lodged within a reasonable time following receipt of the
notice.”
The facts
5.
The mother, although born in Canada, was brought up in England and is
originally of British nationality. The father is Australian. Mother went to
live in Australia in 2008. There she met, and later married, the father. She
took Australian citizenship in 2014 and so now has dual British/Australian
nationality. Two children were born to them in 2012 and 2014. By the end of
2014 the marriage was in difficulties. Mother was on maternity leave from her
job at the time. She told Father that she wanted to make a trip to England with
the children before going back to work. Although initially reluctant, he agreed
to an eight-week visit. Mother and the children came to England on 4 May 2015
with return tickets then scheduled for 24 June. They went to stay with the
maternal grandmother, where they have since remained.
6.
Discussions between Mother and Father then resulted in Father agreeing
to an extension of the eight-week visit. Initially, Father agreed to a four-week
extension. But then, on 28 June 2015 he sent Mother an email which said:
“For the happiness of yourself
& the children & for moving on with our lives I am in agreement that u
n the children stay in the UK for a year.”
That email left open whether the year ran from its date or
from Mother’s first arrival six or seven weeks earlier. The difference does not
affect the outcome of the present dispute, but it is relevant that Father
raised the question in emails to Mother whether she intended to return in May
or June 2016. She did not answer the question. On the basis of the extension
she gave notice to her Australian employer and looked for work in England. In
September 2015 she enrolled the older child at a local pre-school.
7.
The children had entered England on six month visitor visas, so steps
needed to be taken to regularise the longer stay now contemplated. What Mother
then did loomed large at the hearing before the judge. Without telling Father
she applied on 2 November 2015 for British citizenship for the children. She
engaged solicitors to make the application. Those solicitors wrote on her
behalf to the United Kingdom immigration authorities on 4 November 2015. In the
course of a long letter they asserted that the marriage had irretrievably
broken down, that Mother had been the object of repeated domestic abuse which
had, moreover affected the elder child adversely, that she had been
“effectively forced not to return to Australia in order to safeguard herself
and the children” and that the children could not return to Australia because
there was nowhere safe for them to go. The letter added:
“It cannot be in doubt that the children’s centre of life is, and will be, in the UK
where the children are registered as requested.”
8.
Meanwhile in continuing correspondence between the parents, Father
pressed Mother on her expected date of return. On 11 February 2016 she wrote
saying that she did not know what her plans were but “Short term I will not be
returning in May”. She added “I will not base my return to Australia at your
demand.” Later, Father referred her to the Abduction Convention and instructed
solicitors who wrote formally to ask Mother when she planned to return. She
replied in June 2016:
“Thank you for allowing me the
time to seek professional advice … I can confirm that I intend to remain in the
UK for the short term.”
9.
In due course both parents gave oral evidence at the hearing before the
judge of Father’s application under the Abduction Convention. By then it was
accepted that Mother did not propose to return. The issue of when she had so
decided was much in contention. The judge’s conclusions on the topic are
considered below: [2016] EWHC 3535 (Fam). But Mother’s own case was that by
April 2016 she had “felt that we wouldn’t be going back”. That meant that on
any view there had been a decision not to return before the expiry of the
agreed year of stay in England. That gives rise to the second general question in
this case, namely: whether and when such a decision can make the retention in
the destination country wrongful for the purposes of the Abduction Convention before
the expiry of any agreed or sanctioned term of residence there.
10.
The judge also had to make findings as to the place of the children’s
habitual residence. The details of his conclusions are set out below, but he
found that they were habitually resident in England and Wales by at the latest
the end of June 2016, which was the last possible date for the expiry of the
agreed year of stay. He added that in his view it was eminently arguable that
they had acquired habitual residence significantly before that date. Those
findings give rise to the first general question in this case, namely: what is
the effect on an application under the Abduction Convention if the child has
become habitually resident in the destination (requested) State before the act
relied on as a wrongful removal or retention occurs.
The significance of the two general questions
11.
In the simple paradigm case of wrongful removal, one parent will have
taken the child from the State where s/he is habitually resident to a
destination State. Similarly, in the simple paradigm case of wrongful
retention, one parent will have travelled with the child from the State of
habitual residence to the destination State, for example for an agreed
fortnight’s holiday (and thus without the removal being wrongful), but will
then wrongfully have refused to return. In each of those paradigm cases, the
child will have remained habitually resident in the home State. An application
under the Abduction Convention will be made in the destination (or “requested”)
State for the return of the child to the State of habitual residence. The
return will be a summary one, without investigation of the merits of any
dispute between the parents as to custody, access or any other issue relating
to the upbringing of the child (article 16). Such merits decisions are for the
courts of the State of the child’s habitual residence.
12.
In some cases, however, it is possible that by the time of the act
relied upon as a wrongful removal or retention, the child may have acquired
habitual residence in the destination State. It is perhaps improbable in the
case of removal, but it is not in the case of retention. It may particularly
happen if the stay in the destination State is more than just a holiday and
lasts long enough for the child to become integrated into the destination
State. It is the more likely to happen if the travelling parent determines,
however improperly, to stay, and takes steps to integrate the child in the
destination State. Even in the case of wrongful removal it may be possible to
imagine such a situation if, for example, there had been successive periods of
residence in the destination State, followed by a removal from the State of
origin which infringed the rights of custody of the left-behind parent.
13.
In England and Wales at least, this possibility did not in practice
arise in the past, since it was regarded as axiomatic that one parent could not
by unilateral action alter the habitual residence of the child. This proposition
dated from a dictum of Lord Donaldson MR in In re J (A Minor) (Abduction:
Custody Rights) [1990] 2 AC 562, 572, and the decision of Wall J in In
re S (Minors) (Child Abduction: Wrongful Retention) [1994] Fam 70, which
was approved by the Court of Appeal in In re M (Abduction: Habitual
Residence) [1996] 1 FLR 887, 892, and, as Baroness Hale
explained in A v A (Children: Habitual Residence) [2014] AC 1 at para
39, it was thereafter taken for granted. Such a proposition is, however, not
generally adopted in other countries, including the United States, sits
uneasily with the equally axiomatic principle that habitual residence is a
question of fact, not law, and is difficult to accommodate within the European
approach which requires an examination of integration, as exemplified in Proceedings
brought by A (Case C-523/07) [2010] Fam 42 and Mercredi v Chaffe (Case
C-497/10PPU) [2012] Fam 22, and which is binding on this country via Council
Regulation (EC) No 2201/2003 (“Brussels II Revised”): see the analysis of
Baroness Hale in A v A. It was recognised in In re H (Children)
[2015] 1 WLR 863 that such a rule could not survive.
14.
If the habitual residence of the child may have changed to the
destination State by the time of the wrongful act of removal or retention
relied upon, then it becomes necessary to know whether the summary procedure of
the Abduction Convention remains available in such a case or does not. Hence
the first general question. If the answer is that it is not available, because
the Abduction Convention pre-supposes an application made in a destination
State which is not the State of habitual residence, then the second
general question becomes of importance. It becomes important because deliberate
acts aimed at integrating the child in the destination State may well be
undertaken by the travelling parent once he has decided not to honour his
obligation to return to the State of origin. It will then matter whether such
acts, or other manifestations of his decision, can themselves amount to
wrongful retention. If they can, then wrongful retention may occur before any
change of habitual residence has been achieved and whilst the child is still habitually
resident in the State of origin. If they cannot, and wrongful retention cannot
occur until the day of agreed return arrives, it may be too late for any
application under the Abduction Convention, because the same acts which derive
from and accompany the decision not to return may themselves have resulted in
the child becoming habitually resident in the destination State.
The first general question: habitual residence
15.
The first question is accordingly this: if by the time of the act relied
on as wrongful removal or retention the child is habitually resident in the
State where the application for return is made, is summary return under the
Abduction Convention still available or not?
16.
This question did not arise in either of the courts below, where everyone
proceeded on the assumption that the answer was “no”. It arose in the course of
argument in this court, and we have had the benefit not only of some immediate
oral submissions, but of considered post-hearing written submissions from both
parties and from the International Centre for Family Law, Policy and Practice
as intervener.
17.
The argument that summary return under the Abduction Convention remains
available runs as follows:
(a) there is no express
statement in the Convention that the remedy of summary return is available only
where at the time of the act relied on as wrongful the child either remains
habitually resident in the State of origin or is not habitually resident in the
requested State;
(b) on the contrary,
article 3 refers to habitual residence only in order to identify the proper law
- that is to say to identify the law which determines whether a given act is
wrongful (because it is in breach of rights of custody) or not;
(c) therefore, if the
child starts by being habitually resident in State A, but has by the time of
the act relied on as wrongful become habitually resident in State B, all that
article 3 requires is that you look to the law of State B to decide whether the
act was wrongful or not; that is so whether State B is the requested State, or
some intermediate State where the child has become habitually resident before
arriving in the requested State;
(d) once it has been
decided that the act constituted either wrongful removal or wrongful retention,
the Convention takes the court to article 12, which requires an order for
return, subject to the limited exceptions contained in that article and article
13;
(e) moreover, it is
noticeable that article 12, in providing for an order for return, does not
specify that return must be to the state of the child’s habitual residence; it
could be to any State; this reinforces the conclusion that habitual residence
does not govern the place where application for return may be made, but is only
referred to in the Convention in order to provide which law is to determine
wrongfulness.
18.
Accordingly, it is said, on facts such as those of the present case, if
the child’s habitual residence is in England by the time of the act relied on
as wrongful retention, that simply means that it becomes English law which
decides whether the retention was wrongful. If it is decided that it is
wrongful, there can still be a return to Australia.
19.
This may be a possible construction if one has regard simply to the
wording of articles 3 and 12. It is, however, not a persuasive construction if
one takes into account the general scheme of the Convention. Nor is it the way
that the Convention has been operated over the nearly 40 years of its life. Nor
is this construction consistent with the way in which the Convention has been treated
by subsequent multi-lateral instruments in the general field of the conflict of
laws in relation to disputes about the upbringing of children.
20.
By the time of the Abduction Convention, habitual residence was already
established as the principal internationally-recognised basis for according
jurisdiction relating to the upbringing of children. At any rate by the time of
the 1961 Hague Convention on the Protection of Infants, habitual residence was,
together with in some respects the law of the child’s nationality, the principal
basis for jurisdiction (see article 1). By the time of the Abduction
Convention, Professor Pérez-Vera’s report was saying (in para 19) that the
Convention:
“rests implicitly on the principle
that any debate on the merits of the question, ie on custody rights, should
take place before the competent authorities in the State where the child had
its habitual residence prior to its removal …”
(See also para 66 which repeats the point.) Since then
the principle has become even more firmly entrenched. The 1996 Hague Convention
on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in
respect of Parental Responsibility and Measures for the Protection of Children
(“the 1996 Convention”) accords jurisdiction, by article 5, to the State for
the time being of habitual residence, subject only to few qualifications. So,
for states members of the European Union (“EU”), does Regulation 2201/2003
(Brussels II Revised) by article 8.
21.
The entire scheme of the Abduction Convention is to provide a summary
remedy which negates the pre-emptive force of wrongful removal or retention.
The aim was also to defeat forum-shopping. This is made clear by Professor
Pérez-Vera’s report, especially at paras 14-15.
“14. … Now, even if the [left-behind
parent] acts quickly, that is to say manages to avoid the consolidation through
lapse of time of the situation brought about by the removal of the child, the
abductor will hold the advantage, since it is he who has chosen the forum in
which the case is to be decided, a forum which, in principle, he regards as
more favourable to his own claims.
15. To conclude, it can
firmly be stated that the problem with which the Convention deals together with
all the drama implicit in the fact that it is concerned with the protection of
children in international relations derives all of its legal importance from
the possibility of individuals establishing legal and jurisdictional links
which are more or less artificial. In fact, resorting to this expedient, an
individual can change the applicable law and obtain a judicial decision
favourable to him. Admittedly, such a decision, especially one coexisting with
others to the opposite effect issued by the other forum, will enjoy only
a limited geographical validity, but in any event it bears a legal title
sufficient to ‘legalize’ a factual situation which none of the legal systems
involved wished to see brought about.”
With that aim in mind, the framers of the Convention
deliberately abjured a treaty which provided for recognition or enforcement of
the decisions of the State of habitual residence. Paragraph 36 of the report
makes this clear:
“36. … Secondly, the
Convention is certainly not a treaty on the recognition or enforcement of
decisions on custody. This option, which gave rise to lengthy debates during
the first meeting of the Special Commission, was deliberately rejected. Due to
the substantive consequences which flow from the recognition of a foreign
judgment, such a treaty is ordinarily hedged around by guarantees and
exceptions which can prolong the proceedings. Now, where the removal of a child
is concerned, the time factor is of decisive importance ...”
Hence the alternative scheme adopted, for mandatory
summary return. Hence also the critical rule in article 16 that the courts of
the requested State are to abstain from exercising any jurisdiction which they
may have (for example based upon the presence of the child) to make a merits
decision.
22.
This underlying rationale of the scheme of the Abduction Convention was
recognised by this court in In re E (Children) (Abduction: Custody Appeal)
[2011] UKSC 27; [2012] 1 AC 144. Baroness Hale and Lord Wilson observed at para
8:
“The first object of the
Convention is to deter either parent (or indeed anyone else) from taking the
law into their own hands and pre-empting the result of any dispute between them
about the future upbringing of their children. If an abduction does take place,
the next object is to restore the children as soon as possible to their home country,
so that any dispute can be determined there. The left-behind parent should not
be put to the trouble and expense of coming to the requested state in order for
factual disputes to be resolved there. The abducting parent should not gain an
unfair advantage by having that dispute determined in the place to which she
has come.”
23.
The whole point of the scheme adopted was to leave the merits to be
decided by the courts of the place of the child’s habitual residence. The
preamble makes this clear in almost the first words of the Convention. If,
however, the child has by the time of the act relied on as wrongful become
habitually resident in the requested State, then that State will be the
appropriate place for the merits of any custody dispute to be resolved.
If the requested State is the habitual residence of the child, there can be no
place for a summary return to somewhere else, without a merits-based
decision, still less for such to be mandatory. That would be so whether or not
the removal or retention was, judged by the law of the requested State, as the
State of habitual residence, wrongful, for even if it were, it would remain
open to either party to ask the courts of that State to review the future plans
for the upbringing of the child.
24.
This understanding of the scheme of the Abduction Convention is
reflected in the provisions of both the 1996 Convention and Brussels II
Revised. A large number of nations are party to these two multinational
instruments, but not nearly so many as are party to the Abduction Convention.
These two instruments are concerned, unlike the Abduction Convention, with
recognition and enforcement. But they are scrupulous to ensure that wherever
possible they are consistent with the Abduction Convention, whose scheme they
very plainly seek to preserve.
25.
The 1996 Convention adopts, by article 7(2) a definition of wrongful
removal and retention in the same words as article 3 of the Abduction
Convention. Substantively, article 7(1) provides for cases of wrongful removal
and retention a limited exception to the ordinary rule in article 5 that
jurisdiction moves with the habitual residence of the child. In effect, the
State of habitual residence immediately before the wrongful removal or
retention keeps jurisdiction until not only habitual residence has shifted but
also there has been an opportunity for the summary return provided for by the
Abduction Convention. The effect, plainly intended, is to preserve the regime
of the Abduction Convention, and in particular the mandatory summary return. But
if, at the time of the wrongful act, the requested State had become the State
of habitual residence, the extension by article 7(1) to the jurisdiction of the
previous State of habitual residence would have no application and the
requested State would have sole jurisdiction; in such an event, there could be
no question of a mandatory summary return without consideration of the merits.
26.
Brussels II Revised adopts a similar structure to the 1996 Convention.
article 2(11) provides a definition of wrongful removal and retention which,
although not in identical words to article 3 of the Abduction Convention,
achieves the same result, and in particular makes the test for wrongfulness the
law of the State of habitual residence immediately before the act relied upon. Article
10 prolongs the jurisdiction of that State in the event of a wrongful removal
or retention in much the same terms as does article 7 of the 1996 Convention.
As with the 1996 Convention, the intention is plainly to preserve the regime of
the Abduction Convention, and article 11 goes on to make supplemental provision
for the handling of applications under it. It is revealing that it does so
after introduction in the following terms:
“(1) Where a person [etc]
having rights of custody applies to the competent authorities in a member state
to deliver a judgment on the basis of [the Abduction Convention] in order to
obtain the return of a child that has been wrongfully removed or retained in a
member state other than the member state where the child was habitually
resident immediately before the removal or retention, paragraphs 2 to 8
shall apply.” (Emphasis supplied)
Of course, this provision applies only as between States
members which are of the EU. But there is no reason why such States alone
should adopt a rule that the requested State must be a different one from the
State of habitual residence immediately before the wrongful act. On the
contrary, the aim is clearly to preserve the scheme of the Abduction
Convention. The words “other than the member state where the child was
habitually resident immediately before the removal or retention” plainly assume
that this is the scheme implicit in the Abduction Convention. Recital 17 to the
Regulation, which expresses the intention that the Abduction Convention should
continue to operate, also assumes a difference between the State of habitual
residence and the State requested to make a return order.
27.
There are other examples of legislative provisions making explicit the
principle that return under the Abduction Convention presupposes return from a
state other than that of habitual residence at the time of the wrongful act. In
New Zealand, the Convention is given effect by the Care of Children Act 2004.
In that Act, “removal” includes “retention”, in each case as defined in article
3 of the Convention. Section 103 provides:
“(1) The Authority must take
action under the Convention to secure the prompt return of the child to a
Contracting State other than New Zealand if the Authority receives, in
respect of a child, an application claiming -
(a) that the child is
present in New Zealand; and
(b) that the child was
removed from that other Contracting State in breach of the applicant’s rights
of custody in respect of the child; and
(c) that at the time of the
removal those rights of custody were actually being exercised by the applicant,
or would have been so exercised but for the removal; and
(d) that the child was
habitually resident in that other Contracting State immediately before the
removal.” (Emphasis supplied)
In Australia the equivalent Family Law (Child Abduction
Convention) Regulations 1986 provide by regulation 16(1A)(b) that one of the
conditions for an order for return is that “the child habitually resided in a
convention country immediately before the child’s removal to, or retention in,
Australia”.
28.
In re H (Minors) (Abduction: Custody Rights), In re S (Minors)
(Abduction: Custody Rights) [1991] 2 AC 476 the House of Lords addressed
the question whether wrongful removal and wrongful retention were mutually exclusive
concepts; the issue arose in the context of the commencement date for the 1985
Act as between the two States involved. The House held that for the purposes of
the Abduction Convention the two concepts were mutually exclusive, and that
because article 12 required it to be possible to calculate the 12-month period
from a wrongful retention, as well as from a wrongful removal, the former could
not be regarded as simply continuing, but had to have an identified date, in
effect its beginning. Giving the sole speech, Lord Brandon explained, at 498G:
“The preamble of the Convention
shows that it is aimed at the protection of children internationally (my
emphasis) from wrongful removal or retention. article 1(a) shows that the first
object of the Convention is to secure the prompt return to the state of their
habitual residence … of children in two categories: (1) children who have been
wrongfully removed from the state of their habitual residence to another
contracting state; and (2) children who have been wrongfully retained in a contracting
state other than the state of their habitual residence instead of being
returned to the latter state. The Convention is not concerned with children who
have been wrongfully removed or retained within the borders of the state of
their habitual residence.” (Emphasis of “other” supplied)
That echoed an observation of Lord Donaldson MR in the
same case in the Court of Appeal. He had said, [1991] 2 AC 476, 486F:
“… plainly the Act and Convention
can only apply if the child is found in a different State from that in which it
was habitually resident …”
The question raised in the present case did not arise for
decision in In re H; In re S and so the observations noted were not the
result of argument on the point now at issue. They were, however, a considered
analysis of the scheme of the Abduction Convention, and they have been
consistently followed in England and Wales ever since. In consequence in a
number of cases, which it is not necessary to list, applications under the
Convention have failed where the child was habitually resident in England and
Wales by the time of the wrongful act relied upon.
29.
The researches of counsel, for which we are very grateful, have
disclosed that a similar approach has been adopted in Scotland, France, Israel,
Switzerland, Canada, Australia, New Zealand and various United States courts
whether federal or state. Whilst those surveys cannot by their nature be
exhaustive of every decision in every jurisdiction, what is significant is that
none of them, including those conducted on behalf of those arguing against the
currently assumed analysis (Father and the Intervener), has unearthed any
decision to the contrary.
30.
In C v M (2014) (Case C-376/14PPU); [2015] Fam 116 the Court of
Justice of the European Union (“CJEU”) adopted the same analysis. The French
Father had made application to the Irish Court for the return of children who
had been taken to Ireland by Mother. The background was an initial decision of
the French court permitting relocation to Ireland, which had been appealed
promptly. Mother had moved notwithstanding the pending appeal, a stay having
been refused to Father, and subsequently the French decision had been reversed
by the appeal court. The Irish court was minded to find that the child had
become at some stage habitually resident in Ireland. It referred a number of
questions to the CJEU. The CJEU decided (1) that the initial removal to Ireland
had not been wrongful, because of the then extant first instance decision
permitting the move (para 44), (2) that the subsequent retention there after
the French appellate decision might justify an order for return but (3) this
would depend on whether by then the child was habitually resident in Ireland
(paras 45-49 and 63). If habitual residence had by then been established in Ireland,
there could be no order for return. At para 48 the court said:
“Article 11(1) of the Regulation
[vis Brussels II Revised] … provides that paragraphs 2-8 of that article are to
apply where the holder of rights of custody applies to the competent
authorities of a member state to deliver a judgment on the basis of the 1980
Hague Convention in order to obtain the return of a child that has been
wrongfully removed or retained ‘in a member state other than the member state
where the child was habitually resident immediately before the wrongful removal
or retention’. It follows that this is not the case if the child was not
habitually resident in the member state of origin immediately before the
removal or retention.”
31.
It is certainly true that this paragraph proceeds from the words of article
11(1) of Brussels II Revised. But the application which the father had made was
under the Abduction Convention. He had referred also to Brussels II Revised,
but this Regulation does not contain the duty to return a child; what it does
is to recognise that the Abduction Convention does contain such a duty, and by
article 11 it provides supplementary rules for how this duty is to be
performed. En route to its conclusion, the CJEU emphasised, first, that the
Regulation and the Abduction Convention were to be “uniform”, that is to say
consistent (para 58), and secondly that a decision to return under the
Abduction Convention is not a decision on the merits and thus there can be no
occasion for a conflict of jurisdiction between the requesting and requested
State (paras 37 and 40-42). It left to the Irish court the decision of fact
whether and when habitual residence had been established in Ireland. It may be
that its proposition that for a return order under the Abduction Convention to
be made it was essential that the child was habitually resident at the time of
the wrongful act in the State of origin, as distinct from some State other than
the requested State, might be wider than necessary, for it may not have
considered the possibility of habitual residence in an intermediate State,
which did not arise for debate. But what is abundantly clear is that it is only
under the Abduction Convention that a summary order for return is provided for,
and that such an order could not be made if the child was, by the time of the
wrongful act relied upon, habitually resident in the requested State. There is
no hint in the court’s decision that Brussels II Revised has in any sense
modified the fundamentals of the scheme of the Abduction Convention for EU members;
quite the contrary.
32.
In the later case of OL v PQ (2017) (Case C-111/17PPU), a
different chamber of the CJEU reached a similar conclusion. The court held that
a child born in Greece was habitually resident there, despite the originally
Italian home of her parents, and that in consequence an order under the
Abduction Convention for return from Greece to Italy could not be made by the
Greek court. At para 38 the court said:
“It is clear from those provisions
that the concept of ‘habitual residence’ constitutes a key element in assessing
whether an application for return is well founded. Such an application can
succeed only if a child was, immediately before the alleged removal or retention,
habitually resident in the member state to which return is sought.”
33.
The nearest case proffered as any indication to the contrary is In re
G (A Minor) (Enforcement of Access Abroad) [1993] Fam 216. There, the Court of
Appeal House of Lords held that a Canadian-resident father could use the Abduction
Convention (article 21) to enforce his Canadian-given rights of access in
relation to a child who was habitually resident in England by the time the
mother declined to comply with them. But that was not a case involving any
question of return. The provisions of the Convention in relation to access are
notably more fluid and flexible. They simply require the central authorities to
facilitate co-operation with a view to preserving access rights. They make no
demands of the courts of the requested State and to the extent that they
contemplate that an application may be made there, they appear to assume that
those courts will conduct a merits hearing. They provide no guide to the scheme
of the Convention in relation to applications for orders for summary return.
34.
These various examples of the practice as to the application of the
Abduction Convention thus all point in the same direction. 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. It may of course be that in making a merits decision, the court of
the requested State might determine that it is in the best interests of the
child to be returned to his previous home State, and indeed might do so without
detailed examination of all possible evidence, as the English courts may do
(see In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40;
[2006] 1 AC 80). But so to do is very different from making a summary order for
return without consideration of the merits under the Abduction Convention.
35.
The submissions made to this court addressed also the separate question
of whether a return under the Abduction Convention, if made, must always and
only be made to the State of habitual residence immediately before the wrongful
act. It is to be noted that article 12 does not contain any such restriction,
and that Professor Pérez-Vera’s report at para 110 makes clear that the decision
not to do so was deliberate. The reason given is that whilst ordinarily that
State will be the obvious State to which return should be made, there may be
circumstances in which it would be against the interests of the child for that
to be the destination of return. The example given is of the applicant
custodial parent who has, in the meantime, moved to a different State. The
propriety, in such circumstances, of an order returning the child to the new
home state of the custodial parent is not in issue in this case. For the
reasons given above, the silence of article 12 on the destination of a return
order is of no help on the issue which does arise, namely whether an order for
return can be made if at the time of the wrongful act the child was habitually
resident in the requested State. It is however to be observed in passing that
the unusual circumstances envisaged in para 110 of the Pérez-Vera report were
held at first instance to have arisen in O v O (Child Abduction: Return to
Third Country) [2013] EWHC 2970 (Fam); [2014] Fam 87 and there did result
in an order for return to the new home State.
The second general question: when does wrongful retention
occur?
36.
This was the question of principle on which leave to appeal to this
court was given. If the child has been removed from the home State by agreement
with the left-behind parent for a limited period (and thus the removal is not
wrongful), can there be a wrongful retention before the agreed period of
absence expires? The classic example of the possibility is where the travelling
parent announces, half way through the agreed period (say of a sabbatical year
of study for the parent) that he will not under any circumstances return the
child in accordance with the agreement he made. He might do more. He might
effectively make it impracticable to return, by, for example, selling his house
in the home State, abandoning his job there, and obtaining residency in the new
State for himself and the child on the basis of an undertaking that they will
both remain there indefinitely. No doubt other examples could be postulated.
The question is whether, if such a thing occurs, there is then and there a
wrongful retention, or whether his retention of the child cannot in law be
wrongful until the date agreed for return arrives and, as it was graphically
put in the American case of Falk v Sinclair (2009) 692 F Supp 2d 147,
the aeroplane lands and the child is not among those who disembark.
37.
There is some difficulty in devising a suitable shorthand for the
possibility of wrongful retention in advance of the due date for return. One
which has been used is “anticipatory retention”. This is certainly convenient
but it may lead to misconceptions. If early wrongful retention is a legal
possibility, it is not because there is an anticipation of retention. On the
contrary, the child is retained in the destination State from the moment of
arrival, just as he is removed from the home State at the moment of departure.
If the departure and arrival are permitted by agreement with the left-behind
parent, or sanctioned by the court of the home State, they are still
respectively removal and retention, but they are not wrongful. So what is under
consideration is a retention which becomes wrongful before the due date
for return.
38.
The key to the concept of early wrongful retention, if it exists in law,
must be that the travelling parent is thereafter denying, or repudiating, the
rights of custody of the left-behind parent and, instead of honouring them, is
insisting on unilaterally deciding where the child will live. In the absence of
a better expression, the term which will be used here will, for that reason, be
“repudiatory retention”. That is not to import contractual principles lock
stock and barrel into the concept, for the analogy with a contract is only
partial. It is simply to attempt a shorthand description.
39.
The expert and thorough analysis of the known cases in several different
jurisdictions which was undertaken in this case by Black LJ, as she then was,
cannot be improved upon. It is to be found at paras 28-97 of her judgment
[2017] EWCA Civ 980; [2017] 3 FCR 719. On this part of her judgment the Court
of Appeal was unanimous. It shows that a concept of repudiatory retention has
been recognised in some jurisdictions, and for many years now: early examples
included Wall J’s decision in In re S (Minors) (Abduction: Wrongful
Retention) [1994] Fam 70 and the Canadian case of Snetzko v Snetzko (1996) CanLII 11326. Other cases have rejected the concept, for example in Australia.
There are cases going either way in the United States. It follows that there is
no generally accepted international practice on the point, nor is there clear
authority either way in this jurisdiction. In those circumstances it is
necessary for this court to address the principle of the suggested concept.
40.
The Court of Appeal concluded unanimously that there was a concept of
repudiatory retention known to the law. It divided, however, as to whether it
could exist only when the repudiation was communicated to the left-behind
parent (or at least manifested by action), as Black LJ held, or whether such
communication was not necessary in law, as Sharp and Thirlwall LJJ concluded.
In considering the existence of the concept, it is necessary also to address
how repudiatory retention, if it exists at all, may occur.
41.
The helpful submissions made to this court identified six suggested
reasons why such a concept is inconsistent with the Abduction Convention and
not known to the law.
(i) In principle there
can only be a single act of wrongful retention and this cannot occur until the
due date for return arrives, and is not honoured, because until then there is
no breach of the rights of custody of the left-behind parent.
(ii) In ordinary
language “retention” means continuing to hold or to keep possession; however,
until the due date for return arrives, the travelling parent’s retention is
sanctioned and not wrongful.
(iii) A repudiatory
retention is too uncertain a concept, for the travelling parent may change his
mind and return after all on the due date, whatever he may have said or done
earlier.
(iv) If repudiatory
retention were acknowledged, the effect might be to start the clock running
before the left-behind parent knew about it, with the consequence that the 12-month
period stipulated in article 12 might wholly or partly pass and the left-behind
parent be deprived of or hindered in the right to a certain order for return.
(v) Any such concept
would be likely to lead to prolonged hearings in applications under the
Abduction Convention when it is axiomatic that they should be such as can be
dealt with swiftly and summarily.
(vi) No such concept is
needed because the left-behind parent will, if he cannot obtain a summary
return order under the Abduction Convention, have other effective remedies.
42.
The crux of the issue lies in the first two contentions, which are
different ways of expressing the same point. If there is no breach of the
rights of custody of the left-behind parent, then it is clear that the
Convention cannot bite; such a breach is essential to activating it, via
articles 3 and 12. It is clearly true that if the two parents agree that the
child is to travel abroad for a period, or for that matter if the court of the
home State permits such travel by order, the travelling parent first removes,
and then retains the child abroad. It is equally true that both removal and
retention are, at that stage, sanctioned and not wrongful. But to say that
there is sanctioned retention is to ask, rather than to answer, the question
when such retention may become unsanctioned and wrongful.
43.
When the left-behind parent agrees to the child travelling abroad, he is
exercising, not abandoning, his rights of custody. Those rights of custody
include the right to be party to any arrangement as to which country the child
is to live in. It is not accurate to say that he gives up a right to veto the
child’s movements abroad; he exercises that right by permitting such movement
on terms. He has agreed to the travel only on terms that the stay is to be
temporary and the child will be returned as agreed. So long as the travelling
parent honours the temporary nature of the stay abroad, he is not infringing
the left-behind parent’s rights of custody. But once he repudiates the
agreement, and keeps the child without the intention to return, and denying the
temporary nature of the stay, his retention is no longer on the terms agreed. It
amounts to a claim to unilateral decision where the child shall live. It
repudiates the rights of custody of the left-behind parent, and becomes
wrongful.
44.
The plain purpose of the Abduction Convention is to prevent the
travelling parent from pre-empting the left-behind parent. The travelling
parent who 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, is engaging in precisely such
an act of pre-emption.
45.
It is possible that there might also be other cases of pre-emptive
denial of the rights of custody of the left-behind parent, outside simple
refusal to recognise the duty to return on the due date. It is not, however,
necessary in the present case to attempt to foresee such eventualities, or to
consider whether fundamental failures to observe conditions as to the care or
upbringing of the child might amount to such pre-emptive denial. It is enough
to say that if there is a pre-emptive denial it would be inconsistent with the
aim of the Abduction Convention to provide a swift, prompt and summary remedy
designed to restore the status quo ante to insist that the left-behind parent
wait until the aeroplane lands on the due date, without the child disembarking,
before any complaint can be made about such infringement.
46.
It is no doubt true that a travelling parent might change his mind after
an act of repudiation. But so he might after a failure to return on the due
date, and commonly does when faced by notice of the provisions of the Abduction
Convention, or by an application under it. So also he might, after making an
unsanctioned move to an unagreed country, or after embarking on an unsanctioned
programme of religious conversion. The possibility of a change of heart is no
reason not to recognise that the heart needs changing if rights of custody in
the left-behind parent are to be respected. On the contrary, the desirability
of inducing a prompt change of mind is an argument for recognising a
repudiatory retention when and if it occurs. Proof that it has occurred is a
matter of evidence, and what manifestation of it must be demonstrated is
considered below.
47.
If a concept of repudiatory retention exists, it would indeed follow
that once such an act occurs, the article 12 12-month clock would begin to run
at that point. If the left-behind parent knows of the repudiation, there is
every reason why it should run. If he does not, the possibility exists that the
12-month period partly, or sometimes wholly, may pass before he finds out and
can make an application under the Abduction Convention. But it is a mistake to
think of the 12-month period as a limitation period, of the kind designed in
Limitation Acts to protect a wrongdoer from claims which are too old to be
pursued. It is not a protection for the wrongdoer. Rather, it is a provision
designed in the interests of the child. It operates to limit the mandatory
summary procedure of the Convention to cases where the child has not been too
long in the destination State since the wrongful act relied on. Where it
applies, it does not prevent a summary return; it merely makes it
discretionary. In the event that an act of wrongful repudiatory retention had
been concealed, that concealment might well be one factor in the decision
whether to order return or not. In other cases, the settlement of the child
might be so well established that notwithstanding the wrong done by the
travelling parent, it is too late to disturb it. Such decisions are
fact-sensitive ones which are properly left to the court of the requested
State. The risk of the 12-month period running without the knowledge of the
left-behind parent is in any event distinctly less fatal to his interests than
the risk of the child’s habitual residence being changed without his knowledge,
or indeed with his knowledge but without him being able to invoke the
Convention because the due date for return has not yet arrived. The latter risk
creates a complete bar to return under the Convention; the former a
discretionary one.
48.
The concern that Abduction Convention applications may become longer and
more complicated is a point well made. It was convincingly voiced in the Court
of Appeal by Black LJ. It is of the essence of such cases that the remedy is a
swift and summary one. Oral evidence should be the exception, not the rule. But
some limited disputes of fact are bound to arise. In the kind of case where
retention is in question, it will often be critical to establish what the terms
were of any arrangement under which the child travelled. That may be as
necessary to establish the date of due return (and thus conventional wrongful
retention) as to establish an earlier repudiatory retention. The Family
Division judges who hear these cases are well used to managing them actively
and to controlling any tendency to spill outside the issues necessary to
determine them. If the correct rule is that repudiatory retention must be
demonstrated by overt act or statement (see below) the danger of speculative
applications being made, or of hearings degenerating into speculative
cross-examination as to the internal and undisclosed thinking of the travelling
parent ought not to arise.
49.
It may be that in many cases which would be covered by the concept of
repudiatory retention the left-behind parent may have remedies alternative to
an application under the Abduction Convention. We were pressed with the
contention that ordinarily he will be able to seek an order for return in the
home State, and then enforce it in the destination State. This may indeed
sometimes be possible. It will be possible if both States are party to the 1996
Convention and if at the time of the application to the court of the home State
the child is still habitually resident there. In that event, the home State has
jurisdiction (article 5) and the destination State must enforce its decision
(article 23). Article 7 of the 1996 Convention prolongs the jurisdiction of the
home State if there has been a wrongful retention, but if the habitual residence
of the child has been changed to the destination State by the time of the act
relied upon, there will be no wrongful retention and article 7 will not apply.
Nevertheless, the necessity for habitual residence in the home State presents
no greater hurdle to the left-behind parent under the 1996 Convention than
under the Abduction Convention, because if the habitual residence of the child
has shifted to the destination State by the time of the act relied on, neither
form of machinery will work. Likewise, if both States are members of the EU and
governed by Brussels II Revised. All that said, the critical fact is that by no
means all States which are party to the Abduction Convention are party to the
1996 Convention; at the time of the hearing in this court there were some 49
States which are not. Even fewer are members of the EU. The Abduction
Convention has its own self-contained scheme and should function as such. The
recognition and enforcement provisions in the 1996 Convention are, as explained
above, meant to preserve that scheme and not to substitute for it. Moreover,
such an application to the home State would have to trigger a merits hearing,
in which the home State has to adjudicate upon where the best interests of the
child now lie, and upon whether habitual residence has shifted, all depending
on facts occurring perhaps some thousands of miles away. That is not at all the
same as the mandatory summary remedy provided by the Abduction Convention. Even
in jurisdictions, such as England and Wales, which retain the practice of
sometimes returning children without a full investigation of the facts (In
re J, para 34 above), the remedy is not, for the left-behind parent, the
equivalent of the Abduction Convention’s mandatory summary return.
50.
For all these reasons, 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. The remaining
question is what is needed to constitute such repudiatory retention.
51.
As with any matter of proof or evidence, it would be unwise to attempt
any exhaustive definition. The question is whether the travelling parent has
manifested a denial, or repudiation, of the rights of the left-behind parent.
Some markers can, however, be put in place.
(i) It is difficult if
not impossible to imagine a repudiatory retention which does not involve a
subjective intention on the part of the travelling parent not to return
the child (or not to honour some other fundamental part of the arrangement).
The spectre advanced of a parent being found to have committed a repudiatory
retention innocently, for example by making an application for temporary
permission to reside in the destination State, is illusory.
(ii) 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. If it is purely internal, it will probably not come to light
in any event, but even supposing that subsequently it were to do so, there must
be an objectively identifiable act or acts of repudiation before the retention
can be said to be wrongful. That is so in the case of ordinary retention, and
must be so also in the case of repudiatory retention.
(iii) That does not mean
that the repudiation must be communicated to the left-behind parent. To require
that would be to put too great a premium on concealment and deception. Plainly,
some acts may amount to a repudiatory retention, even if concealed from the
left-behind parent. A simple example might be arranging for permanent official
permission to reside in the destination State and giving an undertaking that
the intention was to remain permanently.
(iv) There must
accordingly be 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. A declaration of intent to a third party might
suffice, but a privately formed decision would not, without more, do so.
(v) There is no occasion
to re-visit the decision of the House of Lords in In re H; In re S (para
28 above) that wrongful retention must be an identifiable event and cannot be
regarded as a continuing process because of the need to count forward the
12-month period stipulated in article 12. That does not mean that the exact date
has to be identifiable. It may be possible to say no more than that wrongful
retention had clearly occurred not later than (say) the end of a particular
month. If there is such an identifiable point, it is not possible to adopt the
submission made to the Court of Appeal, that the left-behind parent may elect
to treat as the date of wrongful retention either the date of
manifestation of repudiation or the due date for return. It may of
course be permissible for the left-behind parent to plead his case in the
alternative, but that is a different thing. When once the actual date of
wrongful retention is ascertained, the article 12 period begins to run.
This case: the judge’s decision
52.
The judge ([2016] EWHC 3535 (Fam)) held that there was no concept of
repudiatory retention known to the law. But he helpfully addressed the facts on
the hypothesis that he was wrong about that. He held that the application to
the immigration authorities made on 4 November 2015 did not amount to such a
repudiatory retention, because although it was concealed from Father, something
had to be done to regularise the stay of the children once it was to last more
than their six month visas permitted. Father, he held, could not properly have
objected to such regularisation, even if Mother feared that he might have
tried.
53.
There can be no doubt that the judge significantly misdirected himself
here. It was not the application for permission to stay which was potentially
significant. It was what was said, in support of it, about Mother’s intentions.
Of course it was said by her solicitors, but if it showed that by that date she
had determined that “the children’s centre of life is, and will be, in the UK”
indefinitely, then it would be capable of being an objectively identifiable
manifestation, made to an official third party, of her repudiation of Father’s
rights of custody, and of the fact that thereafter her retention of the
children in the United Kingdom was not in accordance with the arrangement she
had made with him, but in defiance of it.
54.
However, the question which matters is not whether the judge made this
error, but whether it affected his conclusion that Mother had not, before the
expiry of the agreed year (which he determined was at the end of June 2016)
made any act of repudiatory retention.
55.
The judge went on to examine Mother’s state of mind. He found that she
vacillated in what she meant to do. He had seen her examined and cross-examined,
and it is clear that he believed her when she said that as at both November
2015 and February 2016, she had not yet made up her mind. In February she had
told Father only that she would not be returning in May (when the year
would not, on the judge’s findings, have expired). He attributed her
uncertainty in part to anticipation of “harassment” from Father. He then
directed himself that even though she gave evidence that by the end of April
2016 she had resolved not to return, that could not be a date for repudiatory
retention because it was too imprecise and thus inconsistent with the In re
H; In re S rule that retention must be a definite occurrence rather than a
continuing process. To the extent that he relied on imprecision he was, again,
clearly wrong. There is, as explained above, nothing in In re H; In re S
which prevents a court from saying that retention had occurred not later than
the end of April. But what does prevent there from being a repudiatory
retention in April is that Mother’s internal thinking could not by itself
amount to such. If she had had such an intention in November, the application
to the immigration authorities would have been capable of amounting to an
objective manifestation of her repudiation, but the judge believed her when she
said that she did not. It was open to him to believe her or not to believe her
about this. He saw her and this court has only a transcript. It does not
provide nearly sufficient basis for overturning his decision. His error about
the potential significance of what was said to the immigration authorities in
November is not inconsistent with his yet believing the witness whom he saw
when she said that she had not then (or until April) made up her mind to stay.
56.
These findings need to be considered alongside the judge’s decision as
to the habitual residence of the children. He reviewed a body of evidence from
Mother, relatives, neighbours and the playschool manager, to the effect that
the children were, by the Summer of 2016, firmly integrated into the social and
family environment of the part of England in which they had lived for a year,
and, in the case of the younger child, for somewhat longer than he had lived in
Australia. By reference to the decision of Hayden J in In re B (A Child) (Custody
Rights: Habitual Residence) [2016] EWHC 2174 (Fam); [2016] 4 WLR 156, he
directed himself correctly as to the test of habitual residence and the factors
relevant to the integration necessary to establish it. He found that the
children were, by the time of their otherwise wrongful retention at the end of
June 2016, already habitually resident in the United Kingdom, so that the
Abduction Convention could not apply to call for a mandatory summary return. He
expressed the view that they had probably become habitually resident in England
“much earlier” than June 2016.
57.
There is no basis in law for criticising the judge’s decision as to
habitual residence. His remark that it was “arguable” that the children had
established habitual residence by the time of the November application to the
immigration authorities may well be going too far, for at that stage they had
been in the United Kingdom only since May, a period of about six months, but
that remark does not alter the propriety of his decision as to June 2016, by
which time more than a year’s residence had passed, during which the children
had clearly become integrated parts of English life.
58.
For my part, I recognise the force of the contention that the judge’s
error about the potential significance of what was said at the time of the
November application to the immigration authorities infected his decision that
there was no combination of intention not to return and outward manifestation
of that decision until the following summer. But for the reasons given above I
conclude that that infection did not in fact take place. It follows that by the
time the children were retained in the United Kingdom inconsistently with
Father’s rights of custody they had become habitually resident here. That being
so, the application under the Abduction Convention cannot succeed. The
consequence is that Mother’s appeal against the order of the Court of Appeal
must succeed, whilst Father’s cross-appeal in relation to the finding as to
habitual residence must be dismissed.
LORD KERR: (dissenting)
59.
There is much in Lord Hughes’
judgment with which I agree. Like Lord Wilson (with whose proposed disposal I
fully agree) I would have dismissed the appeal. There is perhaps a slight
difference in emphasis between us, however, on the reasons that the appeal
should be dismissed and, on that account, I add this short judgment.
60.
When dealing with the effect of wrongful retention of a child by what
has been described as a travelling parent, one can recognise that various
factors are in play. One starts with the proposition that, in general, it
should not be possible for a child to acquire or for a parent to bestow habitual
residence after the time that wrongful retention begins. A strong imperative exists
for discouraging travelling parents from the view that they can avoid the
consequences of the Abduction Convention by concealing an intention to retain
the child in the country to which they have travelled, on the pretext, for
instance, of a holiday of fixed or limited duration. To insist that wrongful
retention can only occur at the end of an agreed period of absence could lead
to absurd results; would encourage dissimulation on the part of the travelling
parent; and would permit habitual residence to be acquired by the perpetration
of deception on the left-behind parent.
61.
As against that, it is often difficult retrospectively to decide when
wrongful retention began. It may be the outcome of a gradual change of attitude
on the part of the travelling parent. Retention in the country travelled to may
be acquiesced in by the left-behind parent, even if she or he suspects that the
travelling parent may be in the process of forming an intention not to return
the child to the country where she or he was habitually resident. If the child
has formed relationships in the travelled to country and is well settled there
(albeit as a result of the travelling parent’s covertly formed intention not to
return him or her) do the best interests of the child obtrude on the question
of where her or his habitual residence should be found to be?
62.
No final answers to these potentially difficult questions need be given
in the present appeal. I raise them solely to illustrate the extremely trying
problems that can arise in this fraught area.
63.
How is the fact (and the time of onset) of wrongful retention to be
established? Clearly the intention of the travelling parent wrongfully to
retain is needed. Must this be accompanied by some overt act or event by which
the intention becomes manifest? Not without misgivings, I am prepared to accept
that this is required. The reason for my misgivings can be explained by taking
a simple but not, I suggest, fanciful, example.
64.
Suppose a husband persuades his wife to allow him to take their children
to his parents’ native country on the promise that he will return within a
stipulated period. Days after leaving, he conceives a firm determination that
the children and he will never return. He does not communicate this to anyone.
Some months later, he takes action which clearly demonstrates that he has no
intention of returning the children. Evidence emerges that this was his plan
from the outset. Is the period between his first determining not to return the
children and the later “event” reckonable in the assessment as to whether they
have acquired habitual residence in the country of their paternal grandparents?
If we say that the retention only becomes wrongful when the intention of the
retaining parent becomes manifest, how is the claim by the father in my example
that the children have become habitually resident in his parents’ country to be
resisted?
65.
Again, however, this conundrum does not require to be solved in the
present appeal and, having expressed my misgivings about the notion that some
manifestation of the wrongful retention is required, I say no more about it.
66.
For the reasons given by Lord Hughes and Lord Wilson, the judge ([2016] EWHC 3535 (Fam)) was wrong to hold that the law did not recognise repudiatory
retention. His examination of when such a wrongful retention might have
occurred (if, contrary to his view, the concept exists in law) appears to have
been coloured by that primary finding, for he concluded that it had not arisen
in this case at all. That finding simply cannot be reconciled with his
statement in para 80 that “as the months went by, the mother gradually came to
the conclusion that she and the children should remain in England. She had
reached that conclusion by around April though it was not communicated to the
father”. And this, notwithstanding that he had earlier said, at para 62, that a
“finding that there was a wrongful retention on some unspecified date in April
2016 … is too imprecise.”
67.
The opportunity for a firm finding as to the precise timing that
an intention was formed is, in the nature of things, unlikely to be always
possible. Intentions are formed over days, weeks or even years. Because it is
not possible to make a positive finding of the date on which it had been formed
is not a reason for not making a finding as to the time by which it had been
formed. And indeed Judge Bellamy appears to have done precisely that when
he said in para 80 that the mother had decided by “around April” that the
children should remain in England.
68.
The judge, having made that finding, was obliged to consider
whether the children’s habitual residence had been established in England by
April 2016. He did not do that. On that account alone, his decision cannot be
allowed to stand, in my opinion. It is impossible to say that, if he had
recognised the true implication of his statement that the mother had, by April
2016, formed the intention not to return the children, he would nevertheless
have decided that habitual residence in England had by then already been
established. In the absence of a finding to that effect, or alternatively the
inevitability of such a conclusion, it is quite impossible to conclude that the
habitual residence of the children had changed at a time which would displace
the father’s rights under the Abduction Convention.
69.
There is a more fundamental problem with the judge’s judgment. This
concerns the communications to the Home Office in November 2015. In the letter
from the mother’s solicitor, it was asserted that she had been advised not to
return to Australia; that it was necessary that she remain in England “to
safeguard herself and her children”; and that there was no doubt that “the
children’s centre of life is and will be in the UK”. At paras 53 and 59 of his
judgment, the judge dealt with the application for British citizenship in the
following terse passages:
“The solicitor’s letter to the
Home Office dated 4th November sets out information clearly designed to
persuade and assumes that the person making the decision will be exercising a
discretion. As the Home Office was not required to exercise a discretion it
follows that any misleading or inaccurate information set out in that letter
cannot have had any bearing on the decision of the Home Office to approve the
children’s applications.”
And
“As the father well-knew, the
children had entered the UK on six-month visitors’ visas. To enable them to
stay for the year to which the father had agreed, some step had to be taken to
enable them lawfully to remain in the UK beyond 5th November. I do not accept
that it can properly be said that the mother ‘wrongfully retained’ the children
from 5 November 2015.”
70.
From these passages, two reasons for the judge’s conclusions can be
discerned. First, the circumstance that the Home Office did not have to
exercise a discretion meant that any misleading or inaccurate information in
the letter should be discounted or ignored. Secondly, the fact that the father
knew that something would have to be done to allow the children to remain in
the United Kingdom after 5 November 2015 eliminated any possibility of the
mother having wrongfully retained the children from that date.
71.
Neither reason is sustainable. More importantly, the conclusions that he
reached on those matters deflected the judge from recognising and considering
the significance of the evidence provided by the November 2015 correspondence
as to the mother’s intention at that time. The failure to give proper
consideration to that evidence fatally undermines the conclusion reached by the
judge as to the time at which the mother had conceived the intention to retain
the children in England. In turn, this extinguishes the basis for his decision
that the wrongful retention did not begin until June 2016 and that, by that
time, the habitual residence of the children was England.
72.
Why was the judge wrong to decide that, because the Home Office did not
have to exercise a discretion, any misleading or inaccurate information in the
letter should be discounted or ignored? Because this was nothing to the point.
The significance of the letter in the context of these proceedings was its
potential to provide an insight into what the mother’s intention was at the
time that it was written. The purpose of the letter, the result that
it sought to achieve, was entirely incidental to that critical
consideration. The importance of the letter bore on the question of what the
mother’s sentiments about the retention of her children in England were at the
time of its dispatch. What it sought to persuade the Home Office of was
entirely irrelevant to that question. But the judge dismissed the letter as a
potential source of evidence on that central question. Until that question is
addressed, the conclusion that the mother had not formed any intention
wrongfully to retain the children in England in November 2015 is simply
insupportable.
73.
Likewise, the fact that the father knew that something would have to be
done in November 2015 to ensure that the legal entitlement of the children to
remain living in England was preserved, has no direct bearing on the question
whether the letter from the mother’s solicitor showed that, as early as that
date, the mother had decided that she would not return the children to Australia.
The contents of the letter certainly suggested that that was the case. As
already observed (in para 11 above), it had said that she had been advised not
to return to Australia; that it was necessary that she remain in England “to
safeguard herself and her children”; and that there was no doubt that “the
children’s centre of life is and will be in the UK”. What the judge should have
asked himself was, “is it conceivable that such a letter would be sent if the
mother had not already decided that she and the children would not return to
Australia?”. Instead, he elided that question by concentrating on the
circumstance that the husband must have known that the mother would have to do
something to regularise the children’s continued stay in England.
74.
The important question was why the letter was couched in the terms
that it was, if it did not reflect the mother’s settled intention to remain
here. That question was never asked by the judge and it has not been
possible to address it since. It needs to be asked and satisfactorily answered
before any conclusion as to the mother’s intention in November 2015 about
returning her children to Australia can be reached. That is why, in my opinion,
remittal of the case for a proper hearing is unavoidable.
LORD WILSON: (dissenting)
75.
I respectfully agree with the exposition of law in the judgment of Lord
Hughes. I disagree with him only when, from para 52 onwards under the heading “This
case: the judge’s decision”, he reaches the conclusion that the mother’s
appeal should be allowed.
76.
I consider that this court should
have dismissed the mother’s appeal.
77.
The trial judge (“the judge”) held
that the law did not recognise a repudiatory retention and that the mother’s retention
of the children in the UK became wrongful only on 28 June 2016, which he found
to have been the agreed date for their return to Australia.
78.
The judge added, however, that,
even if the law did recognise a repudiatory retention, he did not consider that
it had arisen in the present case, whether in November 2015 or in April 2016 or
at all.
79.
As Lord Hughes has explained, the
Court of Appeal was right to hold that the law does indeed recognise a
repudiatory retention. The majority (Sharp and Thirlwall LJJ) proceeded to hold
that the judge’s conclusion that in any event it had not arisen in the present
case had been flawed; and they ordered that the case be remitted for further
inquiry in that regard, particularly in relation to circumstances in November 2015.
80.
In my view the majority were right
to order that the possibility of a repudiatory retention, particularly in
November 2015, required further to be explored. It required further to be
explored by reference in particular to the mother’s intention; to the need for
some objectively identifiable act of repudiation; and to whether, immediately
before any repudiatory retention, the children had already acquired their
habitual residence in the UK.
81.
Although, like the majority in the
Court of Appeal, I will focus principally on circumstances in November 2015, I
wish briefly to address the possibility of a repudiatory retention of the
children on the part of the mother in April 2016.
82.
The judge found:
“I am satisfied that as the months
went by the mother gradually came to the conclusion that she and the children
should remain in England. She had reached that conclusion by around April
though it was not communicated to the father.”
83.
So why was there no repudiatory
retention in April 2016? In para 55 above Lord Hughes explains
“… that Mother’s internal thinking
could not by itself amount to such. If she had had such an intention in
November, the application to the immigration authorities would have been
capable of amounting to an objective manifestation of her repudiation, but the
judge believed her when she said that she did not.”
Today this court decides, with hesitant concurrence on
the part of Lord Kerr, that the concept of a repudiatory retention requires not
only an intention on the part of the travelling parent to retain a child beyond
the agreed date of return but also some objectively identifiable act of
repudiation on her part. If, however curiously (see below), the objectively
identifiable act occurred in November 2015 but the requisite intention arose
only “by around April” 2016, how obvious is it that the requirements of the
concept were not at any rate by then satisfied?
84.
More importantly, however, the
majority in the Court of Appeal were in my view right to set aside the judge’s finding
that the mother’s intention to retain the children beyond 28 June 2016 arose
only by around April 2016. For he did not grapple with evidence which seemed
clearly to point to her having developed that intention by November 2015.
85.
This evidence was the letter dated
4 November 2015 from the mother’s solicitor to the Home Office, which
accompanied her applications on behalf of the children to be registered as UK
citizens.
86.
The context was that the children
had entered the UK on 5 May 2015 pursuant to visitors’ visas due to expire on 5
November 2015. In the light of the father’s agreement that they could remain
with the mother in the UK until 28 June 2016, it was necessary for their visas
to be extended for almost eight months. But the regularisation of their stay in
the UK for that extended period could have been achieved without their becoming
UK citizens. So the mother’s applications for them to be registered as UK citizens
called for an explanation. Her failure to notify the father in advance that she
was making the applications also called for an explanation and, in
cross-examination, it received one: she explained that she believed that he
would have obstructed them.
87.
To her statement in answer to the
father’s application, the mother exhibited her solicitor’s letter dated 4
November 2015. In the letter the solicitor said:
(a) that the mother “was
effectively forced not to return to Australia in order to safeguard herself and
her children”;
(b) that
she “was advised not to return to Australia”;
(c) that
the “interests of these two children are best served by their being in the UK”;
and
(d) that
it “cannot be in doubt that the children’s centre of life is, and will be, in
the UK where the children are registered as requested”.
88.
The terms of the letter therefore
appear to be entirely inconsistent with an intention on the part of the mother
to return with the children to Australia in June 2016 or at all.
89.
In the body of her statement the
mother said that her decision not to return the children to Australia in June
2016 had developed over time and had not arisen long before that date. But she
made no comment upon the content of her solicitor’s letter to the Home Office. She
did not say that any part of it had been written without her approval or was
untrue. On the contrary she said that her solicitor had been “utterly clear
that there was nothing wrong or deceptive” in the applications for citizenship,
being an assertion with which she seems there to have associated herself.
90.
In cross-examination the mother
was taxed, albeit perhaps in terms too general, about the content of the
solicitor’s letter. She agreed that it did not indicate that she and the
children would return to Australia in June 2016. She denied that, as at the
date of the letter, she had formed an intention to stay with them indefinitely
in the UK but, whether in re-examination or otherwise, she offered no
explanation for what her solicitors had said.
91.
In my view the content of the
solicitor’s letter dated 4 November 2015, in support of applications for the
children to acquire UK citizenship, represented a major obstacle to any finding
that the mother had not by then intended to keep the children indefinitely in the
UK. Before making any such finding, the judge was obliged to weigh that
evidence and, on some basis or another, to explain it away. But, apart from an
early reference to “any misleading or inaccurate information set out in that
letter”, he did not address its content in any way. He said simply:
“If there is a ‘binding legal
principle in relation to ‘anticipatory breach’’, I do not accept that the
circumstances surrounding the children’s applications for British citizenship
amount to such a breach. As the father well-knew, the children had entered the
UK on six-month visitors’ visas. To enable them to stay for the year to which
the father had agreed, some step had to be taken to enable them lawfully to
remain in the UK beyond 5 November.”
92.
With respect to the judge, he was
there missing the main point and was indeed making an unconvincing subsidiary
point. His crucial finding about the mother’s intention in November 2015, not
even expressly made but to be inferred from his reference to “around April”
2016, was flawed; and the majority in the Court of Appeal were correct to order
that inquiry into it should be conducted again.
