Re C (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lady Justice Sharp,Lady Justice Thirlwall |
| Judgment Date | 12 July 2017 |
| Neutral Citation | [2017] EWCA Civ 980 |
| Docket Number | Case No: B4/2016/4442 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2017 |
[2017] EWCA Civ 980
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
HIS HONOUR JUDGE BELLAMY (sitting as a Deputy High Court Judge)
FD16P00489
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lady Justice Sharp
and
Lady Justice Thirlwall
Case No: B4/2016/4442
Mr David Williams QC & Ms Jacqueline Renton (instructed by Ellis Jones Solicitors) for the Appellant
Mr Henry Setright QC & Mr Michael Gration (instructed by Crosse & Crosse Solicitors) for the Respondent
Hearing dates: 8 th & 9 th March 2017
Judgment Approved
This appeal arises in proceedings brought pursuant to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("the 1980 Hague Convention") in relation to two young children, who are 4 and 2 years of age. When their mother did not return with the children to Australia following an agreed period living with them in England, their father sought an order for their summary return. HHJ Bellamy, sitting as a deputy High Court Judge, refused his application by order of 10 November 2016. It is against that refusal that the father appeals.
The facts
Judge Bellamy's judgment can be found on bailii.org under the title Re P and O (Child Abduction: Anticipatory Breach) [2016] EWHC 3535 (Fam). It contains a great deal more detail than it is necessary to rehearse for the purposes of the appeal.
The father is Australian and has lived in Australia all of his life. The mother was born in Canada but spent her childhood in England. In 2008, she moved to live in Australia where she met the father. They were married in November 2010 and family life was based in Australia. In November 2014, the mother obtained Australian citizenship. By then, her relationship with the father was in difficulties and they separated on 14 December 2014. The mother was on maternity leave at the time. She told the father that she wanted to make a trip to England before she returned to work. He agreed to an eight week visit and the mother and children came to England on 4 May 2015 for that purpose. They took up residence with the maternal grandmother in her home in Devon and have remained living there since.
Discussions took place between the parents which resulted in the father agreeing to an extension of the eight week period. On 28 June 2015 he sent the mother the following email:
"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."
The email left it unclear whether the year's stay was to run from the date of the mother's original departure from Australia i.e. until May 2016, or from the date of the email i.e. until 28 June 2016. That was never clarified.
Following the email, the mother 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 come to England on a six month visitor's visa so steps needed to be taken to legitimise a longer stay. Without telling the father, on 4 November 2015 the mother applied for British citizenship for them. The letter written by her solicitors in support of the application (it seems perhaps under some misapprehension as to the criteria against which it would be determined) said that she no longer felt safe in Australia because of the father's behaviour and "was effectively forced not to return to Australia in order to safeguard herself and her children." The letter asserted: "It cannot be in doubt that the children's centre of life is, and will be, in the UK". The children were granted British citizenship on 3 February 2016. This operates in addition to their Australian citizenship.
The father pressed the mother to say when she and the children were returning to Australia. On 11 February 2016 she wrote him an email saying:
"I do not know what my plans are. Short term I will not be returning in May. What I decide will be based on what is in the best interests of the kids not least you mentioned that you were planning to move to New Zealand. I suggest you continue to make your own plans. I will not base my return to Australia at your demand…"
The father responded on 14 February 2016:
"When do you think you will return? Please explain some of your justifying reasons? I have love for my children and want them in my life. You asked for a year. That year is approaching…"
He followed this shortly afterwards with a protest at the mother's lack of response, mentioning the possibility of instructing a solicitor and asking if the mother was aware of the Hague Convention. In March, his solicitor wrote asking whether and when the mother planned to return, saying that the father believed that she may be planning to stay indefinitely in the UK. In June, the mother replied:
"Thank you for allowing me the time to seek professional advice. In reply to your letter I can confirm that I intend to remain in the UK for the short term"
Judge Bellamy, who heard oral evidence from the mother, said that it was unclear precisely when it was that the mother decided that she and the children would not return to Australia. She was pressed hard about it by counsel for the father and was unable to give a date. She said it was a decision that had been made "over time" and by April she had "felt we wouldn't be going back".
Relevant Articles of the 1980 Hague Convention
Central to the debate before Judge Bellamy and on appeal were the following Articles of the 1980 Hague Convention.
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 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.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Article 13 [as relevant]
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of the removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
…
Judge Bellamy's decision
The mother conceded that she had retained the children in this country against the father's wishes at some point, and there does not seem to have been much, if any, argument about whether the retention was in breach of the father's rights of custody, so that the door appeared to be at least part way open to a return order under the 1980 Hague Convention. However, there was no common ground between the mother and the father as to when the retention occurred. It was critical to the outcome of the case to determine when it was, because, as I explain in §19 below, the application of the Convention was dependent upon where the children were habitually resident immediately before the retention.
Five possible dates for the retention were canvassed; the father contended for one of the first three of them and the mother for the last two. The list was as follows:
i) 4 November 2015 when the application for British citizenship was submitted;
ii) 11 February 2016 when the mother told the father she would not be returning in May;
iii) an unspecified date in April, by when, the mother said in evidence, she "felt we would not be going back";
iv) 4 May 2016, being one year from the date of departure from Australia;
v) 28 June 2016, being one year from the father's email agreeing to the children remaining in England for twelve months.
As well as reviewing the factual evidence and making findings based upon it, Judge Bellamy also had to determine whether, as a matter of law, a child could ever be wrongfully retained on a date prior to the end of the agreed period of temporary absence from his or her "home country" (a phrase which I use to denote the country where the child was habitually resident at the start of the temporary absence). In argument, and in some of the authorities, including in Judge Bellamy's judgment, this notion has sometimes been referred to as "anticipatory breach". I would prefer to avoid the use of a contractual term of art, which might artificially confine or influence the consideration of the issue so, unless the context requires me to do otherwise, I will use the...
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