Supreme Court Rules The Concept Of ‘Repudiatory Retention’ In Child Abduction Cases Is Possible In Law - Re C (children: anticipatory retention)

Scales of Justice

Child abduction cases are among the most distressing types of family law matters the best solicitors in London have to deal with.  In Re C (children: anticipatory retention) the Supreme Court recently ruled on proceedings concerning a father's application, under The Hague Convention on the Civil Aspects of International Child Abduction, for the return of his children to Australia.   In arriving at its decision, the Supreme Court held that repudiatory retention in the context of child abduction under the Convention was possible in law.

The judgment goes to the heart of many issues facing international families – that is, when does one party’s temporary move overseas with the couple’s children become a permanent shift?

The facts of the case

The mother, who was British, had moved to Australia with her husband (who was an Australian national).  In May 2015, with her husband’s consent, the mother had taken the couple’s two children back to England.  At this stage, the marriage was under strain but not over, and the mother wanted to make a trip home prior to returning to work following her maternity leave.

However, the mother and her children have been in the UK since 2015.  The father agreed to an extension from eight weeks in the UK to a year.  The mother quit her job in Australian and searched for work in England.

In November, without telling the father, she applied for British citizenship for the children.  In response to the father's questions regarding her expected date of return, the mother wrote in February 2016 stating that she did not know what her plans were but that she would not be returning in May.  Following the mother's confirmation of her intention to stay in England, the father applied in the UK, under The Hague Convention on the Civil Aspects of International Child Abduction (the Abduction Convention), for the return of the children to Australia.

The issues for the court

The court was asked to rule on two matters:

  1. Could the father apply under the Convention as soon as he became aware the mother intended to stay in England with the children beyond the time they agreed, or did he have to wait until that period had elapsed?  Had the mother committed a ‘repudiatory retention’ in November 2015 or February 2016?  This was important because the children were still habitually resident in Australia on those two dates.  If the mother had committed a ’repudiatory retention’ on one of those dates, any subsequent steps she took to integrate the children into life in England (such as enrolling them in pre-school, which she had done) would not have had the effect of changing the children’s habitual residence from Australia to England, and;
  2. Whether the court could order that the children must be returned to Australia under the Convention, even after they had become habitually resident in England.

The court’s decision

All five Supreme Court judges agreed that an application under The Hague Convention could not be made once a ‘repudiatory retention’ had taken place.  Repudiatory retention consists of the travelling parent denying, or repudiating, the custody rights of the left-behind parent and insisting on unilaterally deciding where the child will live.

The court went on to say that the purpose of the Convention was to prevent the travelling parent from pre-empting the left-behind parent.  A travelling parent who repudiated the temporary nature of the stay and set about making it indefinite, often putting down the child's roots in the destination state with a view to making it impossible to move them home, was engaging in precisely such an act of pre-emption, the Convention was designed to protect against.

All the judges went on to agree that in principle, it was possible to make an application under the Convention once a 'repudiatory retention' has taken place.

What this decision means in practice

Following the Supreme Court’s decision, parents should be very wary about permitting a child to move overseas, even if the move is temporary (this especially applies if the destination country is not a signatory to The Hague Convention).  This is because it is possible for a chid to become a habitual resident of another country, even if the left-behind parent vehemently objects.  In this case, three out of five judges upheld the decision of the judge in the first instance and found the mother had not intended to make her stay in England permanent in November 2015 or February 2016.  By the time the father had made an application under the Convention, the children had, in fact, become habitually resident in England.  Lords Kerr and Wilson dissented on this point, stating that on the evidence, it seemed the mother had intended to retain the children in England in either November 2015 or February 2016.  If this had been the majority decision, the children would still have be habitually resident in Australia, meaning the father could have applied for them to be returned.

Unfortunately, it is extremely difficult to determine at what point in time a parent makes a decision to breach any existing agreement regarding children being temporarily being moved abroad.  If you are a parent and believe the travelling or potentially travelling parent may decide to remain permanently in the destination country, you must seek legal advice.  This is because there is a real risk you could lose the opportunity to bring an application under the Convention.

OTS Solicitors is a highly respected immigration and family law firm in London and is highly recommended by the Legal 500.  By making an appointment with one of our Family Solicitors, you can be assured of receiving some of the best legal advice available in the UK today.  Please contact us on 0203 959 9123.

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