Re S (Minors) (Convention on the Civil Aspects of International Child Abduction: Wrongful Retention)
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 1993 |
| Date | 14 July 1993 |
| Court | Family Division |
Family Division
Before Mr Justice Wall
Children - international abduction - wrongful retention
Where children were brought to England for a fixed period by agreement between their parents, a decision by one parent never to return the children to the country of their habitual residence constituted a wrongful retention under article 3 of the Convention on the Civil Aspects of International Child Abduction 1980, as at the date that intention was formed.
Mr Justice Wall so held in a reserved judgment in the Family Division granting the father's application under the 1980 Convention, as enacted by the Child Abduction and Custody Act 1985, for an order that his two children be returned to the country of their habitual residence, Israel, forthwith. The judgment was given in chambers and is reported with the leave of the judge.
The two children had been brought to England from Israel by agreement between the parents. Under the law of Israel the parents had equal parental rights and responsibilities. They intended to reside in England for a fixed period. Before that period had expired the parents' relationship ended and they separated.
The father returned to Israel and issued an application under the Convention seeking the immediate return of the children. The mother remained in England and asserted that both she and the children had become habitually resident there.
Mr James Turner for the father; Mr Frank Moat for the mother.
MR JUSTICE WALL said that there was an issue between the mother and the father as to precisely what their agreement had been. It was sufficient for present purposes to hold that on any view the agreement had been that the family would remain in England for one year from September 1, 1992.
His Lordship had initially been attracted to the proposition that where parents agreed that children should remain in England for a specified period there could not be a wrongful retention until that period had elapsed. The mere fact that the relationship between the parents had come to an end could not entitle one parent unilaterally to reside from that which had been agreed between them.
Thus, if the mother's case had been that she intended at the expiry of the year to return the children to Israel then it seemed to his Lordship that she would have a complete defence to the originating summons...
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