JM v RM
| Jurisdiction | England & Wales |
| Judgment Date | 2021 |
| Neutral Citation | [2021] EWHC 315 (Fam) |
| Date | 2021 |
| Court | Family Division |
Children - Custody rights - Breach - Mother taking children habitually resident in Australia to England for fixed period with father’s consent - Mother unable to return children at end of agreed period due to Covid-19 restrictions - Mother and children remaining in England for some months before father requesting their return to Australia - Father applying for summary return of children - Whether wrongful retention of children requiring clearly agreed due date of return - Whether father “acquiescing in” retention -
With the agreement of the father, the mother brought their two young children from Australia, where they were habitually resident, to England for an annual visit with a due date of return of 23 April 2020. However, the eruption of the Covid-19 pandemic made it impossible for the mother to return to Australia with the children and they remained in England. Eventually the father arrived in England and on 1 August 2020 made it clear to the mother that he wanted the children to return to Australia. By that time the children had been in England for over five months, living in rented accommodation funded by the father and attending a local nursery paid for in part by him. Subsequently the father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980F1, as given effect in England by the Child Abduction and Custody Act 1985, for the summary return of the children. The mother resisted the application, contending: (i) that there had been no wrongful retention of the children, for the purposes of article 12 of the Hague Convention, since there had been no due date of return once it had become impossible to return when originally planned; and (ii) that even if there had been a wrongful retention, the father had “acquiesced in” that retention, for the purposes of article 13(a), with the consequence that the court had a discretion as to whether to order the children’s return.
On the father’s application—
Held, refusing the application, (1) that it was implicit in the concept of wrongful retention, as referred to in the Hague Convention, that the wrongful act took place within, or immediately following, an agreed finite period of care by the retaining parent; that, therefore, there could be no wrongful retention, whether anticipatory or actual, without there being, as a matter of fact, a clearly agreed due date of return; that, in the present case, the original due date of return had been frustrated by the Covid-19 pandemic and no alternative due date of return had been substituted until 1 August 2020, by which time the children were habitually resident in England; and that, accordingly, since the children had been habitually resident in England when the operative act of retention occurred, there had been no wrongful retention for the purposes of article 12 of the Hague Convention, with the consequence that the Convention could not be invoked (post, paras 31–35, 73).
(2) That to succeed in a defence of acquiescence pursuant to article 13(a) of the Convention it was not necessary to show more than that the left-behind parent had subjectively consented to, or passively gone along with, the removal or retention; that when determining whether there had been such acquiescence, the court would pay more attention to outward conduct than to self-serving evidence of undisclosed intentions; that, further, it was hard to conceive of any circumstances where consent or acquiescence was proved but the court nonetheless exercised its discretion to order the child’s return, since the essence of such conduct was that the left-behind parent had condoned the wrongful behaviour of the other parent and had in effect waived his rights for implementation of the policy objectives of the Hague Convention; that, in the present case, even if there had been a wrongful retention by the mother in early May 2020 as the father alleged, he had acquiesced in it in the sense of having gone along with it; that, weighing up all relevant matters, it would not have been appropriate for the court to exercise its discretion to order a return of the children to Australia; and that, accordingly, even if the father could have invoked the Hague Convention the court would not have made the return order which he sought (post, paras 45–47, 53, 63–66, 70–73).
The following cases are referred to in the judgment:
A, Proceedings brought by
C (Children) (International Centre for Family Law, Policy and Practice intervening), In re
D (A Child) (Abduction: Rights of Custody), In re
G (Children), In re
H (Minors) (Abduction: Acquiescence), In re [
K (Abduction: Consent), In re [
M (Children) (Abduction: Rights of Custody), In re
Mercredi v Chaffe
No additional cases were cited in argument or referred to in the skeleton arguments.
APPLICATION
By an application notice dated 23 October 2020 the father, JM, sought an order for the summary return of his two children, P and O, respectively aged 3½ and 1¾, to Australia pursuant to article 12 of the Hague Convention on the Civil Aspects of International Child Abduction (1980), as set out in Schedule 1 to the Child Abduction and Custody Act 1985, on the basis that the mother, RM, had wrongly retained the children contrary to article 3 of the Hague Convention after the end of a period during which they had by agreement resided with her in the United Kingdom.
The matter was heard in private and the judgment, handed down in private, is reported with leave of the judge on condition that the anonymity of the children and members of their family be strictly preserved.
The facts are stated in the judgment, post, paras 3–22.
Katy Chokowry (instructed by
Mark Jarman (instructed by
The court took time for consideration.
22 February 2021. MOSTYN J handed down the following judgment.
1 I shall refer to the applicant as “the father” and to the respondent as “the mother”.
2 I have before me the father’s application dated 23 October 2020 made pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (1980), whereby he seeks the summary return of his children P and O to Australia.
3 P was born in Australia and is 3½ years old; O was also born in Australia and is 1¾ years old. They have dual British and Australian citizenship.
4 The father was born in Australia and is 32 years old. He is a professional sportsman. The mother was born in England and is also 32 years old. The parties met in Sydney in 2011 and began a relationship. They were married on 17 July 2012. Their children were born on 11 October 2017 and 27 May 2019. Up to 26 February 2020 the parties lived exclusively in Australia, although there were annual trips back to this country for the mother to visit her parents and wider family.
5 The mother brought the children to this country on 26 February 2020, with the agreement of the father, for the purposes of the annual visit. She has been here ever since. The father claims that by early May 2020, at the latest, she had committed a wrongful act of retention in breach of his rights of custody within the terms of article 3 of the Convention and he seeks that the children be returned to Australia forthwith pursuant to the terms of article 12.
6 The primary defence of the mother is that there was no relevant wrongful act of retention, because the original due date of return was frustrated and no alternative due date ever substituted. This is a novel argument. It arises in the context of the Covid-19 pandemic.
7 When the mother left Australia with the children on 26 February 2020 she admits that she did so in the context of a functioning, if troubled, marriage with the intention that, as usual, it would be for a fixed and finite holiday period in England with her family. The plan was that the father would join them on 9 April 2020 and that the whole family would return to Australia on 23 April 2020. Flights were booked for the return trip on that date.
8 However, following her arrival, the mother formed the intention around the date of her birthday on 16 April 2020 that she would not return to Australia with the children as she was not happy living there and saw no future in the marriage. She did not then express that view to the father.
9 By that stage the global Covid-19 pandemic had erupted and countries all over the world were going into lockdown. The Australian Government imposed restrictions on leaving the country; the father could not fly to England on 8 April 2020. The return to Australia on 23 April 2020 was taken out of the parties’ hands. The flights back to Australia on that day were cancelled; rebooking would however be available when flights became possible.
10 On 3 May 2020 the mother e-mailed the father. She said:
“I’ve been doing a lot of thinking over the last few days/nights, and when I told you I wasn’t really looking forward to going back...
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