C (Children)

Factual and Procedural Background

This appeal arises from proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction concerning two young children aged 4 and 2. The mother took the children to England from Australia for an agreed temporary stay but did not return them as agreed. The father, resident in Australia, sought an order for their summary return. A deputy High Court Judge refused the application, and the father appeals that refusal.

The mother, originally Canadian-born but raised in England, moved to Australia where she married the father. They separated in December 2014. The mother and children came to England in May 2015 for an agreed eight-week visit, residing with the maternal grandmother. The father later agreed to extend the stay to a year, though the precise start date of this period was unclear.

During their stay, the mother applied for British citizenship for the children without informing the father, asserting that she no longer felt safe in Australia and that the children’s center of life was in the UK. The children were granted British citizenship in February 2016. The father repeatedly sought clarity on when the children would return, but the mother indicated uncertainty and an intention to remain in the UK at least in the short term.

The deputy High Court Judge found it unclear when the mother decided not to return but accepted the decision was made "over time," with a feeling by April 2016 that they would not be going back. The judge ultimately determined the wrongful retention occurred around 28 June 2016.

Legal Issues Presented

1. Whether wrongful retention of the children can occur before the expiry of an agreed temporary stay abroad ("anticipatory retention").
2. Determination of the date of wrongful retention for the purposes of the 1980 Hague Convention.
3. Whether the children were habitually resident in Australia or England immediately before the date of wrongful retention.
4. Application and interpretation of Articles 3, 12, and 13 of the 1980 Hague Convention in these circumstances.

Arguments of the Parties

Appellant's Arguments (Father)

• Wrongful retention can occur before the agreed return date, including any of the three possible earlier dates between November 2015 and April 2016.
• Recognising anticipatory retention protects the left behind parent from losing effective remedies due to the child’s change of habitual residence during a lengthy stay abroad.
• The mother’s actions, including the citizenship application and statements to third parties, evidenced an intention not to return and constituted wrongful retention.
• The judge erred in finding habitual residence in England as at the date of alleged wrongful retention and failed to properly weigh the temporary nature of the stay and other relevant factors.

Respondent's Arguments (Mother)

• Wrongful retention cannot occur until the agreed return date has arrived.
• If anticipatory retention were recognised, it should be strictly confined and not applied to events prior to the agreed end date.
• The citizenship application was necessary to legalise the children’s stay and did not indicate a firm decision not to return.
• The judge’s factual findings on habitual residence and timing of the decision not to return were properly reached and should not be disturbed.
• Recognition of anticipatory retention could complicate and prolong Hague proceedings unnecessarily.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the factual evidence and the legal principles governing wrongful retention under the 1980 Hague Convention, focusing particularly on the concept of anticipatory retention—whether wrongful retention can occur before the agreed return date.

It analysed the timing of the alleged wrongful retention, considering five possible dates advanced by the parties, and rejected the three earlier dates (4 November 2015, 11 February 2016, and an unspecified date in April 2016) as constituting wrongful retention. The court accepted the deputy judge’s finding that the mother did not decide not to return until some time in 2016 and that the earlier events did not amount to wrongful retention because they were either uncommunicated decisions or ambiguous statements.

The court reviewed English authorities, noting the absence of a binding principle on anticipatory retention, and considered international jurisprudence which revealed a lack of unanimity but a trend toward recognising anticipatory retention when clear communication or conduct evidences an intention not to return.

The court emphasised the importance of the child’s habitual residence immediately before the wrongful retention, concluding that by 28 June 2016 the children had become habitually resident in England due to their integration into the social and family environment, and thus the Hague Convention did not apply to order their return to Australia.

The court rejected the father’s argument that the deputy judge erred in his habitual residence analysis, finding that the judge applied the correct legal principles and made a factual determination reasonably open to him.

On the issue of the citizenship application dated 4 November 2015, the court found that the deputy judge had failed to fully address the implications of the solicitor’s letter supporting the application, which contained contemporaneous evidence of the mother’s intention not to return. The appellate court considered this omission significant and concluded that the judge’s rejection of anticipatory retention on that date could not be rationally supported.

Ultimately, the court held that wrongful retention can occur prior to the agreed return date, but whether it has occurred is a question of fact dependent on evidence of intention and conduct, including communication to the other parent. The court expressed concern about the complexity anticipatory retention could introduce into Hague proceedings and emphasised the need for summary, expeditious resolution consistent with the Convention’s aims.

Holding and Implications

ALLOWING the appeal and REMITTING the case for rehearing before a different Family Division judge.

The court held that wrongful retention can occur before the agreed return date ("anticipatory retention") and that the deputy judge erred in failing to properly consider whether the 4 November 2015 citizenship application and supporting documents evidenced such retention. The case is remitted for a rehearing focused first on whether retention occurred before 28 June 2016, and if so, where the children were habitually resident at that time, with further consideration of the Convention’s Articles as applicable.

The decision clarifies that anticipatory retention is a factual question and that clear communication or conduct evidencing an intention not to return may amount to wrongful retention before the expiry of an agreed stay. However, uncommunicated decisions are unlikely to suffice. The ruling acknowledges the complexity and potential for lengthier Hague proceedings if anticipatory retention is asserted, urging courts to manage such cases robustly and expeditiously.

No new binding legal principle was established beyond the recognition that anticipatory retention is possible and fact-dependent. The ruling underscores the importance of assessing habitual residence carefully in cases involving extended stays abroad and parental agreements.