Re C (Children) (Rev 1) [2018] UKSC 8

A mother took her two children from Australia to England for what was agreed to be a temporary stay. She later decided not to return. The Supreme Court considered whether habitual residence had shifted to England and whether 'repudiatory retention' exists, ultimately dismissing the father's Hague Convention application.

Facts

The mother, of dual British-Australian nationality, travelled with her two young children from Australia to England in May 2015 for what was initially agreed to be an eight-week visit. The father, who remained in Australia, subsequently agreed by email dated 28 June 2015 that the mother and children could stay in the UK for a year. On 2 November 2015, without informing the father, the mother applied for British citizenship for the children. Her solicitors’ letter to the Home Office dated 4 November 2015 asserted that the marriage had broken down, alleged domestic abuse, and stated that

“the children’s centre of life is, and will be, in the UK where the children are registered as requested.”

In continuing correspondence, the mother indicated she would not return in May 2016 and eventually confirmed she intended to remain in the UK. The father issued proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Issues

The appeal raised two general questions: (1) whether summary return under the Abduction Convention remains available if, by the time of the alleged wrongful removal or retention, the child has already become habitually resident in the requested State; and (2) whether and when a wrongful retention can occur before the agreed date for return has arrived (so-called ‘repudiatory retention’). The case also raised specific factual questions as to the children’s habitual residence and whether wrongful retention had in fact occurred.

Arguments

The father argued that article 3 refers to habitual residence only to identify the applicable law for determining wrongfulness, and that article 12 does not specify that return must be to the State of habitual residence. He submitted that repudiatory retention should be recognised, potentially without any requirement of communication or overt manifestation. The mother contended that the Convention presupposes that the requested State is different from the State of habitual residence, and that retention could not be wrongful before the agreed return date. She maintained her intention to remain only developed gradually, by around April 2016.

Judgment

First question: habitual residence

Lord Hughes (with whom Lady Hale and Lord Carnwath agreed) held that the Abduction Convention cannot be invoked if, by the time of the alleged wrongful act, the child is habitually resident in the requested State. Though article 3 does not expressly say so, the entire scheme of the Convention, Professor Pérez-Vera’s explanatory report, the 1996 Hague Convention, Brussels II Revised (particularly article 11(1)), and consistent international practice (including CJEU decisions in C v M and OL v PQ) all confirm this. The Convention’s purpose is to secure summary return so that merits decisions can be made in the State of habitual residence; if the child is already habitually resident in the requested State, that State has primary jurisdiction to decide the merits and no mandatory summary return can be ordered.

Second question: repudiatory retention

The Court held that the concept of ‘repudiatory retention’ is known to the law. When a left-behind parent agrees to temporary travel, he exercises rather than abandons his rights of custody. Once the travelling parent repudiates the agreement and keeps the child without intention to return, the retention becomes wrongful even before the agreed return date. Such repudiation requires: (i) a subjective intention not to return; (ii) an objectively identifiable act or statement manifesting that repudiation (though not necessarily communicated to the left-behind parent); and (iii) an ascertainable date from which the article 12 period can run.

Application to the facts

The majority accepted that the trial judge had misdirected himself on the significance of the November 2015 solicitor’s letter to the Home Office, but concluded this did not affect his ultimate decision. The judge had believed the mother’s evidence that she had not yet decided to remain until around April 2016, and this internal thinking alone could not constitute repudiatory retention absent an objective manifestation. By the time the retention became wrongful (at the latest at the end of June 2016), the children had already become habitually resident in the UK. The application therefore failed.

Dissent

Lord Kerr and Lord Wilson dissented, holding that the judge’s finding that the mother had formed her intention only by April 2016 was flawed because he failed to grapple with the content of the 4 November 2015 solicitor’s letter, which appeared inconsistent with any intention to return. They would have remitted the case for further inquiry.

Implications

This decision clarifies two significant aspects of Hague Convention practice. First, it confirms that the Convention’s summary return mechanism is unavailable where the child has already acquired habitual residence in the requested State at the time of the wrongful act. Secondly, it establishes that wrongful retention can occur before an agreed return date, through ‘repudiatory retention’, provided there is both a subjective intention not to honour the agreement and some objectively identifiable act or statement manifesting that repudiation. The ruling emphasises that the Convention is to be interpreted consistently with its broader international scheme, including the 1996 Hague Convention and Brussels II Revised. The decision has particular importance for practitioners advising parents considering or responding to international relocation, and highlights the urgency of acting promptly when a left-behind parent suspects that a travelling parent intends to remain abroad beyond the agreed period. The case also demonstrates the tension between preventing unilateral action by travelling parents and the factual reality that habitual residence can shift during extended agreed stays.

Verdict: The mother’s appeal was allowed; the father’s cross-appeal on habitual residence was dismissed. The Hague Convention application for summary return of the children to Australia failed because the children had become habitually resident in the UK before any wrongful retention occurred.

Source: Re C (Children) (Rev 1) [2018] UKSC 8