The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the purposes of the Abduction Convention the two concepts were mutually exclusive, and that because article 12 required it to be possible to calculate the 12-month period from a wrongful retention, as well as from a wrongful removal, the former could not be regarded as simply continuing, but had to have an identified date, in effect its beginning. There is ‘retention’ of the child for the purposes of the Convention only where the child has been lawfully taken from one country to another, for example for staying access for a defined period) and there has then been a wrongful failure to return the child at the expiry of that period.
Lord Brandon explained: ‘The preamble of the Convention shows that it is aimed at the protection of children internationally (my emphasis) from wrongful removal or retention. article 1(a) shows that the first object of the Convention is to secure the prompt return to the state of their habitual residence . . of children in two categories: (1) children who have been wrongfully removed from the state of their habitual residence to another contracting state; and (2) children who have been wrongfully retained in a contracting state other than the state of their habitual residence instead of being returned to the latter state. The Convention is not concerned with children who have been wrongfully removed or retained within the borders of the state of their habitual residence.’ (Emphasis of ‘other’ supplied)
Judges:
Stuart Smith LJ, Balcombe LJ (dissenting)
Citations:
[1991] 2 AC 476, [1991] 2 FLR 109, [1991] 1 All ER 836, [1991] 2 WLR 62
Statutes:
Chid Abduction and Custody Act 1985, Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980)
Jurisdiction:
England and Wales
Citing:
Appeal from – In re H (Minors) CA 20-Aug-1990
The Hague Convention did not apply to wrongful acts of removal which had taken place before the 1985 Act came into force.
Lord Donaldson MR said: ‘plainly the Act and Convention can only apply if the child is found in a different State from . .
Cited by:
Cited – Re H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Cited – In Re H and others (Minors) HL 10-Apr-1997
Three young children had been brought to England from Israel by their mother but without the consent of the father, who now sought their return. The mother claimed that the father had subsequently acquiesced in the removal. Both parents were . .
Cited – CG v CW and Another (Children) CA 6-Apr-2006
A lesbian couple had split up and disputed the care of the children. An order had been made but then, in breach of that order, one removed the children overnight to Cornwall. An argument was made that the court had failed to give proper weight to . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 15 August 2022; Ref: scu.219636
