C (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lady Hale,Lord Carnwath,Lord Kerr,Lord Wilson |
| Judgment Date | 14 February 2018 |
| Neutral Citation | [2018] UKSC 8 |
| Date | 14 February 2018 |
| Court | Supreme Court |
[2018] UKSC 8
Lady Hale, President
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
Appellant
Henry Setright QC
Michael Gration
(Instructed by Crosse & Crosse Solicitors LLP)
Respondent
Charles Hale QC
Jacqueline Renton
Michael Edwards
(Instructed by Ellis Jones Solicitors LLP)
Intervener (International Centre for Family Law, Policy and Practice) (written submissions only)
Christopher Hames QC
Mark Jarman
(Instructed by Stewarts Law LLP)
Heard on 9 and 10 October 2017
( with whom Lady Hale and Lord Carnwath agree)
This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) (“the Abduction Convention”). It raises general questions relating to:
In addition, the facts of the present case raise particular questions whether the trial judge's conclusions were properly open to him upon:
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(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and
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(2) whether and when a wrongful retention of a child may occur if the travelling parent originally left the home State temporarily with the consent of the left-behind parent or under court permission, and the agreed or stipulated time for return has not yet arrived.
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(a) the habitual residence of the children in the case; and
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(b) whether a wrongful retention in fact occurred, and if so when.
The Abduction Convention is in force for some 97 States. Its preamble records the desire of those States:
“to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence …”
Article 1 states the objects of the Convention as follows:
“(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
The general scheme of the Convention is to enable a left behind parent to make this application in the State to which a child has been taken, seeking return of the child. States are required to set up Central Authorities to transmit and receive such applications. Where the removal from the home State, or the retention in the destination State is wrongful, the courts of the recipient State are required by article 12 to order the return of the child “forthwith”. Apart from a saving provision in article 20 which permits refusal to return where such would amount to a breach of the requested State's fundamental principles of human rights, that obligation to return is subject to very limited exceptions which, if present, enable (but do not require) return not to be ordered. Those exceptions are found in article 13 (rights of custody not being exercised; consent or acquiescence of the left-behind parent; grave risk that return would expose the child to physical or psychological harm or would place him/her in an intolerable situation; child's objections), and in article 12 (child has been in the recipient State for one year from the wrongful removal or retention and is now settled there). Where prompt notice of wrongful removal or retention is received, the recipient State is required by article 16 to abstain from any decision on the merits of rights of custody, unless it is determined that return is not to be ordered. Moreover, States are required to act fast on any request. By article 11 an initial period of six weeks is stipulated, and the applicant or his Central Authority are entitled to an explanation from the recipient State if that period is exceeded. Thus the return is summary and its object is to enable merits decisions as to the child's future to be made in the correct State, rather than in the State to which the child has been wrongfully taken, or in which he/she has been wrongfully retained. The general purposes and scheme of the Convention are expanded upon in an explanatory report by Professor Elisa Pérez- Vera on the work of the drafting conference, which report accompanied the original framing of the Convention; it is accordingly an aid to construction recognised in international law and in particular under article 32 of the Vienna Convention on the Law of Treaties (1969). In England and Wales the Convention is given domestic effect by the Child Abduction and Custody Act 1985, section 1(2).
Four key concepts underlie the Convention: wrongful removal, wrongful retention, rights of custody and return. The principal provisions which require attention in the present case, apart from the preamble and article 1, set out above, are articles 3, 4, 5, 12 and 16. So far as relevant, they say:
“Article 3
The removal or the retention of a child is to be considered wrongful where —
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. …”
“Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
“Article 5
For the purposes of this Convention —
(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
(b) [rights of access]”
“Article 12
Where a child has been wrongfully removed or retained in terms of article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. …”
“Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.”
The mother, although born in Canada, was brought up in England and is originally of British nationality. The father is Australian. Mother went to live in Australia in 2008. There she met, and later married, the father. She took Australian citizenship in 2014 and so now has dual British/Australian nationality. Two children were born to them in 2012 and 2014. By the end of 2014 the marriage was in difficulties. Mother was on maternity leave from her job at the time. She told Father that she wanted to make a trip to England with the children before going back to work. Although initially reluctant, he agreed to an eight-week visit. Mother and the children came to England on 4 May 2015 with return tickets then scheduled for 24 June. They went to stay with the maternal grandmother, where they have since remained.
Discussions between Mother and Father then resulted in Father agreeing to an extension of the eight-week visit. Initially, Father agreed to a four-week extension. But then, on 28 June 2015 he sent Mother an email which said:
“For the happiness of yourself & the children & for moving on with our lives I am in agreement that u n the children stay in the UK for a year.”
That email left open whether the year ran from its date or from Mother's first arrival six or seven weeks earlier. The difference does not affect the outcome of the present dispute, but it is relevant that Father raised the question in emails to Mother whether she intended to return in May or June 2016. She did not answer the question. On the basis of the extension she gave notice to her Australian employer and looked for work in England. In September 2015 she enrolled the older child at a local pre-school.
The children had entered England on six month visitor visas, so steps needed to be taken to regularise the longer stay now contemplated. What Mother then did loomed large at the hearing before the judge. Without telling Father she applied on 2 November 2015 for British citizenship for the children. She engaged solicitors to make the application. Those solicitors wrote on her behalf to the United Kingdom immigration authorities on 4 November 2015. In the course of a long letter they asserted that the marriage had irretrievably broken down, that Mother had been the object of repeated domestic abuse which had, moreover affected the elder child adversely, that she had been “effectively forced not to return to Australia in order to safeguard herself and the children” and that the...
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