Cases where children are taken out of the country by one parent without the consent of the other can be highly complex.

One such case, which involved the removal of two children from Australia to the UK by their mother, recently found its way to the Supreme Court, which has now published its decision on the matter.

Facts of the Case

The case concerned a married couple who lived together in Australia with their two children until 2015. By the end of 2014 the marriage was apparently in trouble, and the mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight-week stay, however the mother and the children have remained in England since they arrived in May 2015.

Discussions between the mother and father apparently resulted in the father agreeing to an extension of the eight week visit up to a year and at that point the mother gave notice to her employer and looked for work in England.

In September 2015, the mother enrolled the older child at a local pre-school. In November 2015, without telling the father, she applied for British citizenship for both children who had entered England on six-month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse.

In continuing correspondence, the father pressed the mother on the children’s expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK.

Father Brings Legal Action

The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Abduction Convention”).

One issue the court had to decide was at what point did the mother decide not to return to Australia. The mother’s own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year.

The High Court found in the mother’s favour, ruling that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But it accepted the mother’s evidence that she did not have the intention, in November 2015, or before April 2016, not to return to Australia.

Appeal to Supreme Court

The father successfully appealed this decision in the Court of Appeal, however the mother brought an appeal to the Supreme Court, which had two main issues to consider:

• what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs?;
• and if a child has been removed from their home state by agreement with the left-behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so-called “repudiatory retention”)?

The Supreme Court found in favour of the mother and has allowed her appeal. At the same time, it dismissed a cross appeal by the father on the issue of habitual residence.

With regards to the first of the issues set out above, the judgment explains that:

“The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by 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 decide on the merits, based on the child’s habitual residence, and there is no room for a mandatory summary decision.”

On the second issue, the judges said that:

“On the present facts there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe the mother’s evidence that she did not possess this intention in November. There is no basis in law for criticising the judge’s decision as to habitual residence.”

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