Re H (Child Abduction: Wrongful Retention)
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Year | 2000 |
| Court | Family Division |
Child abduction – Wrongful retention – Mother seeking child’s return to Sweden after agreeing to child spending time in Wales – Father refusing to return child alleging mother consented to or later acquiesced in child remaining in Wales long-term – Whether child wrongfully retained in Wales – Duties on practitioners and judges dealing with children cases where child has lived abroad and a parent wishes to return to that country with him.
Following the parents’ separation, the child continued to live with the mother in Sweden. However, the mother decided to enrol in a one year art course in September 1998 which required her to live in both Spain and in England, and the parents agreed that for the duration of the course the child would live with the father, who at the time was still living in Sweden. Later that year the parents discussed the idea of the child and the father going to Wales for a period of time, and in March 1999 the father and child travelled to Wales, where the father rented a flat and moved in all his belongings. On 19 July 1999, following acrimonious telephone calls between the parents, the mother consulted a solicitor in Wales, and despite making it clear that she wished the child to return with her to resume living in Sweden when her course ended, the solicitor failed to spot that the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) might apply, and advised her that she would have to apply for a residence order under the Children Act 1989. On 8 August the mother failed to return the child to the father as expected after a visit, and the following day the father instituted legal proceedings, which proceeded thereafter on the basis of fully contested cross-residence applications. The mother subsequently instructed a new solicitor who instituted proceedings under the Hague Convention seeking the child’s summary return to Sweden on the ground that he was being wrongfully retained in Wales. The father, who also instructed new lawyers, contended that the mother had consented to the child living indefinitely and on a long-term basis with him in Wales, or that she later acquiesced in his doing so, and that he accordingly had a defence under art 13 of the Convention.
Held – (1) Although the father had clearly ceased to be habitually resident in Sweden when he moved to Wales, there had never been a stage when the mother reached a settled intention, or indeed any intention, not to return to Sweden. The mother’s family lived in Sweden, she retained a flat there and throughout the whole relevant period she was merely a student abroad for a finite one year course. It followed that the mother clearly retained her habitual residence in Sweden. Moreover, viewing the evidence as a whole, it was clear that the mother had not consented to or acquiesced in the child remaining with his father or in England and
Wales beyond the end of her course. Accordingly, the child was being wrongfully retained for the purposes of the Hague Convention, and the court would order his return to Sweden forthwith.
(2) The concept and ambit of ‘wrongful retention’ extended the arm of the Convention way beyond a ‘snatch’, and could apply even after a child had been in the country for a substantial period of time. Whilst child abduction was a specialist branch of family law, any one involved in children cases here had to be alert to the possibility of international child abduction whenever the child had formerly lived abroad in a Convention country and a parent wished to return to that country with him. Alarm bells should ring at once, and if there was any doubt at all consideration should be given to transferring the case to a full-time judge of the Family Division, and/or seeking expert advice from experienced practitioners, and/or the advice of the Child Abduction Unit. Moreover, if a solicitor, though acting for the ‘abducting’ parent, did appreciate even the possibility that the Hague Convention might apply, he was under an important duty to draw that fact to the attention of the court at the first opportunity in any legal proceedings. Although the present case was one to which the Hague Convention applied, there had been a complete failure by the mother’s previous lawyers to realise that the Convention did or might apply, and no one had drawn the possibility to the attention to the judges involved. As a result the family had suffered needlessly from the failures by the English legal system.
Cases referred to in judgmentC (minors) (abduction: consent), Re[1996] 3 FCR 222, [1996] 1 FLR 414.
D (minors) (abduction: acquiescence), Re[1999] 3 FCR 468, [1998] 2 FLR 335, CA.
H and R (minors) (sexual abuse: standard of proof ), Re[1996] 1 FCR 509; sub nom Re H (minors) (sexual abuse: standard of proof) [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
J (a minor) (abduction: custody rights), Re [1991] FCR 129, [1990] 2 AC 562, [1990] 3 WLR 492; sub nom C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961, [1990] 2 FLR 442, HL; affg [1991] FCR 129, [1990] 2 AC 562, [1990] 2 All ER 449, CA.
R v R (minors) (child abduction) [1996] 1 FCR 480; sub nom R v R (residence order: child abduction) [1995] 2 FLR 625.
T v T (child abduction: consent) [1999] 2 FCR 2, [1999] 2 FLR 912.
ApplicationThe mother applied for the summary return of the child to Sweden under the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985. The case was heard and judgment was given in chambers, and is reported with the permission of Holman J. The facts are set out in the judgment.
Marcus Scott-Manderson (instructed by Dawson Cornwell) for the mother.
Jeremy Rosenblatt (instructed by Longueville Gittins) for the father.
HOLMAN J. Introduction and backgroundThis is an application under the Child Abduction and Custody Act 1985 and the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention) for the return to Sweden of a boy whose mother says he is being wrongfully retained here.
The mother is Swedish and her home and upbringing were all there. The father is British, but he has travelled and worked as a musician in a number of parts of the world and in the summer of 1994 he went to Sweden to work. That autumn he met the mother and they began to live together in her flat in Gothenburg. Their one son, H, was born on 13 January 1996. He is now aged four.
The parents never married but on 7 March 1996 in Sweden they entered into a formal written Bekraftelse (Confirmation) in which they both confirmed that the father is indeed the father of H and that they would share custody. The effect seems to be similar to, or the same as, a parental responsibility agreement under the Children Act 1989 and means for all purposes relevant to this case that each parent has equal custodial rights and duties in relation to H.
Sadly, the relationship between the parents was short-lived and they separated in May 1996. H continued to live with his mother but from time to time saw his father, who later moved to live in Malmo.
In July 1998 the mother decided that she wished to attend a one year course in fine art with the Winchester School of Art which is attached to Southampton University. The course is in two parts. The first nine months from 8 September 1998 to 20 June 1999 were to be spent in Barcelona in Spain. The last three months from 29 June to 12 September 1999 were to be spent in Winchester, England. The mother informed the father of this plan and they agreed that for the duration of the course H would live with his father who at the time was still living in a rented flat in Malmo in Sweden.
The mother went to Barcelona in September 1998. H remained in Sweden. The mother returned to Sweden for a few days during that autumn in order to see H. The father took H to Barcelona to see his mother during December 1998, after which they all returned to Sweden for a further week or so before the mother returned to Barcelona again.
There is no doubt that during December 1998 and early 1999 the parents discussed the idea of H and his father coming for a period of time to Wales, where the father has a good friend and where he thought it would be pleasant to live.
In March 1999 the father gave notice to his landlord in Malmo. In mid-March 1999 the father and H travelled to Wales by car, loaded with a large quantity of the father’s and H’s belongings. The father paid a deposit on a rented flat which his friend had found at Llanfechain in Powys, and left all the belongings there.
On 6 April 1999 the mother herself flew from Barcelona to Liverpool where the father and H met her. They all went to the flat at Llanfechain and spent a few nights there before all driving together to Sweden on 13 April. The mother spent
a few days in Sweden and then returned to her course in Barcelona. H remained in Sweden, staying partly with his grandmother in Gothenburg and partly with his father in Malmo.
At the end of May 1999 the father and H travelled again by car to Llanfechain bringing...
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