C (Children)

C (Children)

Wrongful retention under the 1980 Hague Convention can, as a matter of law, occur before the expiry of an agreed period of temporary absence (anticipatory retention), but whether it has occurred is a question of fact. In this case, the trial judge failed to properly address contemporaneous evidence (the mother's application for British citizenship for the children and supporting documents) which strongly indicated an intention not to return the children to Australia as agreed. The appeal is allowed and the case remitted for rehearing to determine if anticipatory retention occurred before the children lost habitual residence in Australia.

Parties
Appellant: Father; Respondent: Mother
Jurisdiction
England and Wales
Judgment Date
12 July 2017
Procedural Posture
Appeal (family/child Abduction) / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal allowed; case remitted for rehearing
Legal Topics
International Child Abduction, Hague Convention 1980, Wrongful Retention, Habitual Residence, Anticipatory Retention
Family Law International Law International Child Abduction Hague Convention 1980 Wrongful Retention Habitual Residence Anticipatory Retention

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Parties

Father

Appellant

Mother

Respondent

Procedural Posture

Appeal (family/child Abduction) / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Can wrongful retention under the 1980 Hague Convention occur before the expiry of an agreed period of temporary absence (anticipatory retention)?
  2. 2 What constitutes sufficient evidence of anticipatory retention?
  3. 3 When did the children lose habitual residence in Australia and acquire it in England?

Ratio Decidendi

Wrongful retention under the 1980 Hague Convention can, as a matter of law, occur before the expiry of an agreed period of temporary absence (anticipatory retention), but whether it has occurred is a question of fact. In this case, the trial judge failed to properly address contemporaneous evidence (the mother's application for British citizenship for the children and supporting documents) which strongly indicated an intention not to return the children to Australia as agreed. The appeal is allowed and the case remitted for rehearing to determine if anticipatory retention occurred before the children lost habitual residence in Australia.

Court Disposition

Appeal allowed; case remitted for rehearing

Orders

  • Case remitted to the Family Division of the High Court for rehearing before a different judge.
  • The rehearing is to determine whether retention occurred before 26 June 2016; if so, to determine the children's habitual residence at the relevant time and consider Articles 3, 4, and 13 of the Hague Convention.