‘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
(2) whether and when a wrongful retention of a child may occur if the travelling parent originally left the home State temporarily with the consent of the left-behind parent or under court permission, and the agreed or stipulated time for return has not yet arrived.’ M came from Australia with the two children. F agreed to them staying for a year, but she then sought British Nationality for them, without telling F.
Held: (Lord Kerr dissenting in part, Lord Wilson dissenting) Where, the wrongful action occurred only after the child had acquired the new habitual residence, a summary order for return should not be made. Rather the normal procedures for custody disputes should be used. If there is a pre-emptive denial it would be inconsistent with the aim of the Abduction Convention to provide a swift, prompt and summary remedy designed to restore the status quo ante to insist that the left-behind parent wait until the aeroplane lands on the due date, without the child disembarking, before any complaint can be made about such infringement.
Lady Hale, President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
[2018] UKSC 8, [2019] AC 1, [2018] 1 FLR 861, [2018] 2 WLR 683, [2018] 3 All ER 1, [2018] WLR(D) 90, [2018] 2 FCR 733, UKSC 2017/0135
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2017 Oct 09 am Video, SC 2017 Oct 09 pm Video, SC 2017 Oct 10 am Video
Hague Convention on the Civil Aspects of International Child Abduction, Child Abduction and Custody Act 1985
England and Wales
Citing:
At FD – Re P and O (Child Abduction: Anticipatory Breach) FD 10-Nov-2016
M and children had come back to England from Australia, and had F’s consent to stay for another year. She then applied for British Citizenship for the children without F’s knowledge. F now sought their return.
Held: The children had become . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – In Re S (Minors) (Convention On the Civil Aspects of International Child Abduction) FD 21-Jul-1993
(Child Abduction: Wrongful Retention) A failure by a parent to return a child to his country of residence can constitute a wrongful retention under the Convention. Where both parents have equal status in relation to the child, one parent can not . .
Appeal From – In Re C (Children) CA 12-Jul-2017
F appealed against refusal of an order requiring M to return their two children to Australia. . .
Cited – 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 – In Re H (Minors) (Abduction: Custody Rights) HL 1991
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 . .
Cited – In re G (A Minor) (Enforcement of Access Abroad) CA 1993
The Convention did not provide for mutual enforcement of access rights, and when determining matters of access relating to access to children to whom the Convention applied English courts are entitled to apply the Children Act 1989, and to consider . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – OL v PQ ECJ 8-Jun-2017
ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – . .
Cited – C v M ECJ 9-Oct-2014
ECJ (Judgment) Urgent preliminary ruling procedure – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Hague Convention of 25 October 1980 on the civil . .
Cited – Falk v Sinclair 2010
The question was whether having removed child to another country by agreement, and later deciding to stay, there is then and there a wrongful retention, or whether his retention of the child cannot in law be wrongful until the date agreed for return . .
Cited – In re S (Minors) (Child Abduction: Wrongful Retention) FD 1993
The parents of S were Israeli citizens living in Israel. They had equal parental rights and responsibilities under Israeli law. They brought their two children to England intending to reside here for one year and then return to Israel. The father . .
Cited – Snetzko v Snetzko 27-Jun-1996
(Ontario – Superior Court of Justice) APPEAL – Grounds – Factual findings by trial judge – Deference to trial judge’s factual determinations and findings – Where trial judge has had chance to observe witnesses while testifying and to draw . .
Cited – Re B (A Minor : Habitual Residence) FD 24-Aug-2016
Hayden J said: ‘In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move.’ . .
Cited – O v O FD 21-Aug-2013
(Child Abduction: Return to Third Country) . .
Cited by:
Cited – NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction) CA 18-Jun-2019
M appealed from an order ordering the summary return of a girl to Israel. . .
Cited – O v O FD 21-Aug-2013
(Child Abduction: Return to Third Country) . .
Lists of cited by and citing cases may be incomplete.
Children, International
Updated: 23 December 2021; Ref: scu.604790