C (Children), Re

Factual and Procedural Background

The case concerns two children born in 2012 and 2014 to the Appellant (the mother) and the Respondent (the father). The family had been living in Australia. In May 2015 the Appellant travelled with the children to The City in the United Kingdom for what was originally an eight-week stay, agreed by the Respondent. The Respondent later consented to extend the visit to one year.

During the stay the Appellant:

• Gave notice to her Australian employer and sought work in the UK.
• Enrolled the elder child in a local pre-school.
• In November 2015, without informing the Respondent, applied through solicitors for the children to be registered as British citizens, asserting in correspondence that the children’s “centre of life is, and will be, in the UK”.

Tensions grew over whether the children would be returned to Australia at the end of the agreed year. The Respondent invoked the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) and issued proceedings in England seeking the children’s summary return.

The High Court (Judge Bellamy) dismissed the application, holding that by June 2016 the children were habitually resident in England and that no “wrongful retention” had occurred earlier. The Court of Appeal set that decision aside and ordered a re-hearing, accepting in principle that a “repudiatory” (early) retention could occur, but finding the judge’s analysis inadequate. The Appellant appealed to the Supreme Court; the Respondent filed a cross-appeal on habitual residence findings.

Legal Issues Presented

1. Whether the Convention can be invoked when, at the time of the alleged wrongful act, the children have already become habitually resident in the requested State.
2. Whether and in what circumstances “wrongful retention” can occur before the expiry of an agreed period of overseas residence (the concept of “repudiatory retention”).
3. On the facts, whether the trial judge’s findings on (a) habitual residence and (b) the presence or absence, and timing, of any wrongful retention were open to him.

Arguments of the Parties

Appellant's Arguments

• The children had become habitually resident in England before any wrongful act; therefore the Convention’s summary-return mechanism was inapplicable.
• No objectively manifested repudiation occurred before the agreed period expired; alternatively, any such repudiation was not proved.
• Even if “repudiatory retention” exists in law, it was not established on the evidence.

Respondent's Arguments

• The Convention should apply regardless of any change in habitual residence; English law could determine wrongfulness and still order return.
• The Appellant’s November 2015 citizenship applications and related correspondence constituted an objectively identifiable repudiation, triggering wrongful retention well before June 2016.
• The trial judge misdirected himself in treating those acts as neutral and in finding an earlier shift in habitual residence.

Table of Precedents Cited

Court's Reasoning and Analysis

(1) Habitual residence and the Convention’s scope
The majority (Judge Hughes with Judges Hale and Carnwath concurring) held that the Convention’s summary-return regime presupposes that, at the time of the alleged wrongful act, the child is habitually resident in a different State from the requested State. This conclusion was reached by analysing:

• The text and structure of Articles 3, 12 and 16.
• The Convention’s purpose of preventing forum-shopping and ensuring that merits disputes are decided in the State of habitual residence.
• Consistent international and EU instruments (1996 Hague Convention; Brussels II Revised) and uniform case-law.

(2) Repudiatory (early) wrongful retention
The Court recognised that wrongful retention can occur before the agreed return date if the travelling parent “repudiates” the agreement. Key features:

• A subjective intention not to return is necessary but insufficient; there must also be an objectively identifiable act or statement manifesting repudiation.
• Communication to the left-behind parent is not essential; concealment cannot defeat wrongfulness if objective evidence exists.
• Once repudiatory retention occurs, the Article 12 one-year period runs from that point.
• This approach aligns with the Convention’s aim of defeating pre-emptive acts and allowing swift remedies.

(3) Application to the facts

• The trial judge’s errors in analysing the November 2015 citizenship letter did not undermine his core factual findings that the Appellant had not yet formed (or manifested) a settled intention to keep the children permanently before April 2016.
• By the time any retention became wrongful (June 2016 at the latest), the children were already habitually resident in England, based on a year’s integration into family, social and educational life.
• Because the requested State (England) was also the State of habitual residence at that time, the Convention could not mandate summary return.

(4) Dissents
Judge Kerr and Judge Wilson agreed with the legal framework but considered the trial judge’s factual evaluation flawed, particularly regarding the November 2015 correspondence. They would have dismissed the Appellant’s appeal and remitted the matter for fresh findings.

Holding and Implications

Holding: The Supreme Court (majority) ALLOWED the Appellant’s appeal and DISMISSED the Respondent’s cross-appeal. No order for summary return under the Hague Convention was made.

Implications:

• Confirms that the Convention cannot be invoked where, at the time of the alleged wrongful act, the child is habitually resident in the requested State.
• Clarifies that “repudiatory retention” is legally possible and sets guidelines for identifying it, but requires objective manifestation.
• Emphasises the factual nature of habitual residence and the limited role of appellate courts in disturbing first-instance findings.
• Signals that left-behind parents must act swiftly; if habitual residence shifts before wrongful retention is established, Convention relief will be unavailable.