C (Children)

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.

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:

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:

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:

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”.

Central to the debate before Judge Bellamy and on appeal were the following Articles of the 1980 Hague Convention.

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:

4 November 2015 when the application for British citizenship was submitted;

11 February 2016 when the mother told the father she would not be returning in May;

an unspecified date in April, by when, the mother said in evidence, she “felt we would not be going back”;

4 May 2016, being one year from the date of departure from Australia;

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 shorthand “anticipatory retention”.

Having reviewed the decided authorities that were put before him, Judge Bellamy determined, adopting the analysis of Roberts J in BP v DP (Children)(Wrongful Retention: Anticipatory Breach) [2016] EWHC 633 (Fam), [2017] 4 WLR 33, that there was no “binding legal principle in relation to ‘anticipatory breach’” (see §§49 and 50 of his judgment). By this, I think he meant that he had concluded that anticipatory retention was not a concept known to the Hague Convention because, when he then went on to consider whether any of the first three dates could amount to a wrongful retention, he said he did so “lest I am wrong on that point”.

As to the first event, counsel for the father had relied not upon the act of making the applications for British citizenship but upon the statements made by the mother’s solicitor to the Home Office in support and the mother’s failure to consult the father about the applications (§45). The judge himself mused on the possibility that the submission of the application could itself be a wrongful retention (§46). However, his ultimate determination was that the circumstances surrounding the applications for British citizenship for the children did not reveal any wrongful retention (§59).

The judge dealt with the mother’s email of 11 February 2016 at §61. He noted the uncertainty in the minds of both parents as to whether the 12 month stay to which the father consented by his email of 28 June 2015 ran from the date when the mother and children left Australia or from the date of the email. Counsel for the father invited the judge to conclude that the mother’s email of 11 February was to the effect that she intended to remain in England indefinitely but, in the light of the uncertainty, he declined to interpret her email in that way and rejected it as a wrongful retention.

The third date, the unspecified date in April which emerged in cross-examination of the mother as the date by which she felt they would not be going back, was dealt with in §62. The judge rejected it too, for two reasons. The first was that he considered that wrongful retention was “an event and not a process” and a finding that there was a wrongful retention on some unspecified date in April 2016 would be too imprecise. The second was that the evidence that by April the mother had come to the conclusion that she would not be going back only came out in cross-examination and was a “feeling” which had not been conveyed to the father at the time.

The judge then went on to consider the last two dates. The uncertainty in the parties’ own minds about when the consensual twelve month stay was due to end contributed to his finding that the mother retained the children on 28 June 2016 (§65). In rejecting the May date, he noted that the father had not initiated Hague proceedings until 27 July 2016 and that, in a letter to the English Central Authority, the Australian Central Authority had referred to the wrongful retention as being on or around 28 June 2016.

Having found that the retention in question was on (or around) 28 June 2016, Judge Bellamy had to consider where the children were habitually resident immediately before that date because that would determine whether the 1980 Hague Convention gave the father any effective remedy. Article 12 defines the obligation of the Contracting State where the child now is to “order the return of the child” and, reading the Convention as a whole and bearing in mind its object, it is clear that the return in contemplation is a return to the country where the child was habitually resident “immediately before the removal or retention”. Accordingly if, at the time immediately preceding the removal or retention, the child is no longer habitually resident in their original home country, an application under the Convention will not serve to achieve their return to that home country.

Translating this into practical terms in this case, if the children were no longer habitually resident in Australia by 28 June 2016, no order could be made under the 1980 Hague Convention for their return to Australia, or as the judge put it in his conclusions, “the Convention does not apply.”

Judge Bellamy considered the question of habitual residence from §66 to 78 of his judgment. The argument before him was, on the father’s side, that the children remained habitually resident in Australia throughout, and on the mother’s side, that they had become habitually resident in England and Wales prior to 28 June 2016. The judge reviewed the evidence on the point and concluded (§80) that the children had obtained a sufficient degree of integration in the social and family environment in this country for them to have become habitually resident here as the mother argued, having pulled up their roots in Australia and put down new ones here. He said that he considered it “eminently arguable” that they had become habitually resident here much earlier on, indeed arguably by the time their application for British citizenship was submitted.

The children having been found to be habitually resident here at the time of the event which (should the judge be wrong on the law about anticipatory retention) he had identified as the wrongful retention, so the Hague Convention had no role and the father’s application would accordingly be dismissed.

Before leaving Judge Bellamy’s judgment, it should be said that the issue before him was not confined to the question of whether there had been a wrongful retention of the children. The mother also relied upon the terms of Article 13 of the 1980 Hague Convention, arguing that the father had acquiesced in the children’s retention in England or that returning them to Australia would place them in an intolerable situation. Judge Bellamy did not, however, address these matters in the light of his other conclusions and they did not feature in the appeal before us, so I need not say any more about them.

Mr Williams QC and Ms Renton, for the father, argue that wrongful retention can occur in advance of the agreed return date and did so here. In their submission, any one of the three matters which arose between November 2015 and an unspecified date in April 2016 (see §12(i) – (iii) above) would count as anticipatory retention.

Mr Setright QC and Mr Gration for the mother argue that wrongful retention does not occur until the agreed return date arrives. If the court were to favour the possibility of wrongful retention at an earlier date, however, they seek strictly to confine the scope for such a finding, denying that anything that happened in this case before the agreed end date of the visit (whether that be in May 2016 or June 2016) could amount to wrongful retention.

Each side argues that it is necessary to approach matters in the way they propose in order to avoid serious damage to the operation of the Hague Convention. Neither side accepts that the other’s gloomy prognostications would come to pass in practice.

There is no obvious answer to the vexed question of what the proper approach should be to anticipatory retention. The English authorities do not determine it conclusively and there is no unanimity of approach in other countries either. A consideration of the arguments should, nevertheless, commence, in my view, with a review of the English and international authorities.

As I have said, nothing in the English authorities conclusively determines whether there can be a wrongful retention of a child at any point prior to the conclusion of the agreed period of the child’s stay away from their home country. Nor is there anything that conclusively addresses the inevitable supplementary question which would flow from a determination that wrongful retention could theoretically occur in advance, namely what would be capable of amounting to such a retention? Which, if any, of the following would count, for example: actions, statements to the other parent, statements to third parties, uncommunicated decisions on the part of the retaining parent, a “feeling” that there would not be a return?

Before looking at authorities touching on anticipatory retention, it may be helpful to look at a relatively early case on the 1980 Hague Convention, In re H (Minors)(Abduction: Custody Rights), In re S (Minors)(Abduction: Custody Rights) [1991] 2 AC 467, which has been treated as establishing some fundamental principles concerning the Convention, and which features in some of the cases, domestic and international, which consider the issue of anticipatory retention.

The House of Lords was here concerned with two appeals. In both cases, the children had not been returned to their mothers by their fathers after a period of access, having been brought by the fathers to this country in breach of orders of their home country, in one case the USA and in the other Canada. When the mothers sought the children’s return under the 1980 Hague Convention, they encountered difficulty because the children had been removed from their home countries before those countries became contracting states, resulting in the argument that the Convention did not therefore apply. It is perhaps worth noting, however, that by the time that the matter reached the House of Lords, the mothers had in fact achieved the return of the children to their care in their home countries (see page 494B).

The question that arose for decision was what was meant by “removal” and by “retention” in the Convention. Lord Brandon, with whose speech there was unanimous agreement, set out three points which needed to be addressed. He said (page 497):

In his “preliminary observations about the nature and purpose of the Convention”, Lord Brandon pointed out that it was not concerned with children who were wrongfully removed or retained within the country of their habitual residence but with the protection of children internationally. He considered that a child can only be wrongfully retained in a contracting state other than the state of his or her habitual residence if (page 499):

This dictated the answer to the third of the three points that he had articulated at page 497 (supra), namely that the removal or retention in question must be out of the jurisdiction of the courts of the state of the child’s habitual residence (page 500E).

In answer to the first of the three points, Lord Brandon concluded (page 499G) that, in view of the wording of Article 12 of the Convention, “both removal and retention are events occurring on a specific occasion, for otherwise it would be impossible to measure a period of one year from their occurrence”. In relation to the second point, he decided (page 500B) that removal and retention are mutually exclusive concepts which can neither overlap nor follow one upon the other. Retention occurs, he said:

The events in both cases accordingly constituted removals which had taken place before the Convention came into force between the countries involved, and the English court had no jurisdiction to make orders under it for the summary return of the children.

Counsel for the mother submit that it is clear from the speech of Lord Brandon, with whom there was unanimous agreement, that the House of Lords contemplated that a retention occurs at the expiry of a period of agreed temporary removal and that this has not been overturned by any subsequent authority. I agree that Lord Brandon did speak in these terms, but it is fair to say, I think, that the issue with which we are now concerned was not actually being debated in the cases upon which the House of Lords was ruling.

Re AZ was a case essentially about acquiescence. The child was habitually resident in Germany when brought by the mother, with the father’s consent, in October 1991, to stay in England until 21 January 1992. The mother decided, in November 1991, not to return to Germany. Her sister took over the care of the child here. The aunt obtained ex parte residence and prohibited steps orders, providing that the child should live with her and preventing his removal from the jurisdiction. When the father was served with the orders he did not contest them. However, he did start divorce proceedings in California where he sought care and control of the child. It was not until the end of March 1992 that he told the family that he intended to take the child back to Germany, issuing Hague proceedings for the child’s return in May 1992.

The Court of Appeal held that the father had made a clear decision to leave the child where he was in England for the time being and had acquiesced in his retention here. It is only in the judgment of Sir Michael Kerr that anything is to be found which is of relevance on the question of wrongful retention during a temporary stay abroad. Butler-Sloss LJ (as she then was) and Sir Donald Nicholls V-C (as he then was) concentrated entirely on acquiescence.

Sir Michael Kerr commented (page 688) that the “facts of the case are unusual including the matters on which the judge relied as constituting a wrongful retention”. Booth J had found that there were two points of time when the child was retained in this country wrongfully. The first was when, in November 1991, the mother decided not to return to Germany. The second was when, in December 1991, the aunt obtained the ex parte orders, which Booth J found were obtained for the purpose of preventing the father from taking the child back to Germany. Sir Michael Kerr commented on this aspect of Booth J’s decision as follows:

What I draw from this is that Booth J had been prepared to accept that events during the currency of an agreed stay abroad could amount to wrongful retention, that she thought that an uncommunicated decision by the mother not to return, and the obtaining of a residence order and prohibited steps order were both sufficient for this purpose, and that, whilst Sir Michael Kerr did not agree with her in relation to the uncommunicated decision, he did in relation to the court order. Indeed, although it is difficult to tell from the judgment, it seems to me to be possible that, on this score, he might even have being going further than Booth J did and contemplating that the mere making of the application (rather than the obtaining of the order) was enough. However, although it is valuable to have regard to Sir Michael Kerr’s views, I do not see Re AZ as the most compelling of jurisprudential contributions on the subject of anticipatory retention. There was undoubtedly a wrongful retention of the child in that he was not returned to Germany on 21 January 1992 in accordance with the parents’ agreement. No decision as to the standing of the earlier events was necessary for the determination of the case and Sir Michael Kerr’s observations are obiter. It would have been interesting to see Booth J’s reasoning for accepting that there could be a wrongful retention before the expiry of the agreed period away, but as far as I know all we have of Booth J’s judgment is what is quoted in the Court of Appeal decision, and Booth J there simply proceeds, without further explanation, upon the basis that a wrongful retention can arise at that stage.

In Re S, in September 1992, a couple and their two children came from their native Israel to spend at least a year in England on scholarships at an English university. The parents separated, the children remaining with the mother. The father alleged that from a date in April 1993, the mother refused to allow the children to speak to him. In May 1993, the mother obtained an ex parte interim residence order and prohibited steps order in England as she feared that the father would remove the children and return with them to Israel. In June 1993, the father applied successfully for the return of the children to Israel under the 1980 Hague Convention.

Wall J proceeded (see page 88) upon the basis that the decision of the House of Lords in In re H [1991] makes it clear that wrongful retention is not a continuing state of affairs and that to establish wrongful retention it is necessary to prove an event occurring on a specific occasion. The mother’s case was that she could not have retained the children at any point prior to, at the earliest, the beginning of September 1993. Wall J indicated that he found this “the most difficult aspect of the case” and that he was initially attracted to the proposition that where parents agree that children will remain in England for a specified period there cannot be wrongful retention until the agreed period has elapsed. Had the mother’s case been that she intended to return the children to Israel at the expiry of the term originally agreed, he considered that she would have had a complete defence to the Hague application, either because her retention was not wrongful or, under Article 13(a), because the father had consented to the retention of the children in England for a fixed term. But that was not the position. The mother was refusing to return the children at any point in the future. Wall J therefore set himself the following question (page 91):

He then went on:

At page 93 he said:

I emphasised Wall J’s acceptance of the argument that the mother could not have the benefit of the agreement for a fixed period in England without the burden because the argument was echoed before us. It seems to me that it is this idea that is the essential foundation of Wall J’s view. It is to be noted that he seems to have been prepared to accept “as an issue of fact” (a rather curious phrase) that an uncommunicated decision not to return was itself capable of being an act of wrongful retention, going on to find that it was “by announcing her intention not to return the children to Israel at all and by asserting that she and the children have acquired habitual residence in England” that the mother had wrongfully retained the children.

In RS v KS, the father of a child who was habitually resident in Lithuania gave his consent for the mother to bring the child to England for a three week holiday. Unbeknown to him, the mother had no intention of honouring the agreement to return the child to Lithuania and had obtained his consent by deceit. At the end of the holiday period, the mother stayed on with the child in England. After some false starts, the father issued 1980 Hague Convention proceedings for the return of the child one year and 4 days after the child left Lithuania. The proceedings were delayed for various reasons and the child had been in England for over two years by the time they eventually came on for hearing.

Macur J (as she then was) dismissed the father’s application for summary return. The mother had resisted the return on two bases. The first was that the father’s proceedings had been commenced after the expiration of one year from the date of wrongful removal or retention, thus opening the door to the settlement exception in Article 12. In order to evaluate this argument, Macur J had to decide when the wrongful removal or retention of the child had occurred. She decided that the initial removal of the child from Lithuania had been a wrongful removal because the father’s consent was obtained by deceit and vitiated, but that there had also been a subsequent wrongful retention. As she put it, “this was a case of wrongful retention which subsumed a wrongful removal” (§31). She held that an intention wrongfully to retain a child had to be communicated to the other parent in word or deed before the wrongful retention was operative. There had been no overt advance indication by the mother that she had resiled from the original plan. Accordingly, Macur J found that there was no wrongful retention until the date on which the child should have been returned to Lithuania. As a year had not elapsed between then and the issue of proceedings, the settlement exception did not come into play.

However, Macur J declined to order the child’s return as she accepted the mother’s alternative argument that a return would expose the child to an intolerable situation and that it would be appropriate to exercise the discretion that therefore arose under Article 13(b) by refusing it.

Macur J’s reasoning for her finding as to the date of the wrongful retention begins at §31 as follows:

She acknowledged that her finding of a wrongful removal subsumed into a wrongful retention ran counter to the decision in In re H (supra) that wrongful removal and wrongful retention are mutually exclusive (see Lord Brandon at page 500). But, she said, she did not depart from his determination that an act of retention is an event occurring on a specific occasion. She continued:

As I read RS v KS, Macur J might have been prepared to accept that wrongful retention could occur before the end of the agreed period of absence, but not on the basis of an uncommunicated decision on the part of the retaining parent. For reasons of certainty, and to ensure that the other parent was not prejudiced by the settlement exception when he could not have known that time was running against him, she required that the mother should have given an overt indication that she had resiled from the plan (§39) or, as she put it at §31, notification “by word or deed”. Her actual decision, however, was entirely conventional in that she took, as the date of wrongful retention, the date upon which the mother and child should have returned.

In BP v DP Roberts J reviewed the three English authorities to which I have just referred and considered also an authority from America and one from New Zealand. The two children in her case had moved from Australia to England in August 2014 with their British father because of a complete breakdown in their mother’s mental and physical health. In December 2014, the father began proceedings, subsequently stayed, seeking a prohibited steps order preventing the removal of the children from his care and an order that they should live with him. In January 2015, he told the mother that he was unwilling to sanction the children’s return until he was satisfied as to her state of health.

The mother’s application under the 1980 Hague Convention for the return of the children on the basis that they had been wrongfully retained by the father failed. She had argued that there was an agreement between the parties that the children would be returned to Australia within 6 to 12 months and that by taking steps to prevent their return in January 2015, the father had retained them in breach of that agreement or, alternatively, that a wrongful retention occurred at the end of the 12 month period, in August 2015. Having resolved factual issues between the parties, Roberts J held that the date of the retention was August 2015, but by that stage the children were habitually resident in England and Wales and their retention was not wrongful. Roberts J’s decision about this was significantly dependent upon the facts of the case, in particular the impact of the mother’s continuing ill health.

Roberts J’s consideration of “anticipatory breach” begins at §56. The facts of her case contrasted with those in Macur J’s case of RS v KS because, in BP v DP the father accepted that the mother was aware in January 2015 that he was unwilling to return the children to Australia, whereas the father in RS v KS was not made aware of the mother’s intention not to comply with the agreement that the children be returned after their holiday. Counsel for the mother sought to persuade Roberts J that there could be “anticipatory breach”, relying on Re AZ, Re S, and RS v KS, as well as In re H (Children)(Reunite International Child Abduction Centre intervening) [2014] EWCA Civ 1101, [2015] 1 WLR 863 to which I will come shortly. Counsel for the father argued that the concept was mere sophistry, and relied upon the decision of the United States Court of Appeals for the First Circuit in Toren v Toren (1998) 26 F Supp 2d 240 (in which the court said that the Hague Convention only provides a cause of action to petitioners who can establish actual retention, and does not provide a remedy for “an anticipatory violation of the Hague Convention”) and the decision of the New Zealand Court of Appeal in Punter v Secretary for Justice as the New Zealand Central Authority [2003] NZCA 306; [2004] 2 NZLR 28 (where the court did not accept that an application by the mother, during an agreed two year stay in New Zealand, to the New Zealand court for a custody order so that she might retain the children in New Zealand would be a retention unless and until either the court did assume jurisdiction by making the requested order extending the two year stay, or the two year period ended and the children were not returned). I will say no more about these cases from abroad at this stage because I intend to review the foreign jurisprudence later.

Roberts J’s approach to the issue of “anticipatory breach” is encapsulated in her §72 where, following her review of the authorities relied upon by both sides, she said:

The judge then set out in §73 et seq her reasons for settling upon a date at the end of the agreed 12 month stay, rather than the January date which fell during the currency of the agreed period in England. They revolve around the facts of the particular case and there is nothing to be gained from setting them out here.

In Re A, the Supreme Court touched upon the question that arises in the present appeal, although it was peripheral to the main issues of habitual residence and jurisdiction that arose for determination there. The context for their observations was the “rule”, which then existed, that one of two parents with parental responsibility for a child could not unilaterally alter the child’s habitual residence. This “rule” avoided the danger of the 1980 Hague Convention being circumvented by a change of habitual residence prior to what would otherwise have been the wrongful removal or retention of the child.

As Lord Hughes put it, at §76:

The “rule” did not fit well with the essentially factual nature of habitual residence and, a little later, in In re H (Children) (Reunite International Child Abduction Centre intervening) [2014] EWCA Civ 1101; [2015] 1 WLR 863, this court concluded that it could not survive (see below). The justices were conscious, in Re A, that its days may be numbered but the prospect of losing it troubled them. Lord Hughes and Baroness Hale reflected on alternative ways to ensure that state A would still be able to make an effective order for return. Lord Hughes said:

Baroness Hale said:

The Supreme Court did not, of course, have the benefit of argument focused expressly on the question of whether there could be a wrongful retention before the child was due to be returned, but it is interesting to see their preparedness to contemplate it as a real possibility.

Counsel for the father submitted in writing that Re H [2014] accepted the existence of a “principle” of “anticipatory breach” and that this was binding upon us. I do not consider that to be a tenable submission and it was not pursued orally. The issue for determination in Re H was whether the “rule” had survived recent developments in the law concerning habitual residence. In deciding this, it was not necessary to reach any concluded view about the possibility of anticipatory retention and nor did I. Such observations as I made in Re H about the possibility of wrongful retention occurring at an earlier stage were simply a reflection of what had been said in Re A.

What I said of Re A, at §30, was:

I have been assisted by reviewing decisions of the courts of other countries touching on the question of anticipatory retention in the context of the 1980 Hague Convention. Although considerable efforts have been made to identify as many decisions as possible, the catalogue which follows will undoubtedly be incomplete, and I am conscious that some of the decisions to which I refer may have been overtaken by later decisions to the contrary. Whilst that is a pity, it does not in my view deprive the exercise of its value. If there were to be unanimity of approach around the globe, then it would be important for this country to handle the question in a manner consistent with that approach, and one would need to be sure to have a complete and up to date picture of the world view. But as it is clear that there are different views on the subject, what matters is to appreciate the range of approaches and, if possible, the reasoning behind them.

The father of a one year old child sought the child’s return from Scotland to Australia. The mother had taken the child to Scotland with the father’s agreement for a three month break, arriving on 16 May 2016, return being due on 8 August 2016. The mother’s evidence was that from the moment she arrived, she was thinking about how she was going to tell the father that she was not returning. She took steps such as cancelling her Australian benefits and registering herself and the child with a doctor and dentist in Scotland. On 20 June 2016, she informed the father that she was not coming back. The Inner House upheld the Lord Ordinary’s finding of fact that the child remained habitually resident in Australia. The Lord Ordinary had not specified whether he had taken 20 June or 8 August as the material date. The Inner House thought that the choice of date made no difference to the outcome in the particular case, but their opinion was (§35) that the correct date for assessment of the child’s habitual residence was “the date on which the [mother] unambiguously advised the [father] that she and the child would not be returning to Australia (namely 20 June 2016)”, citing Wall J in In re S (Minors)(Abduction: Wrongful Retention) [1994] (supra) and Lord Hughes at §78 of Re A (supra). This authority therefore lends support to the concept of anticipatory retention, established by unambiguously informing the other parent that the child would not be returning.

The family lived in New York. The father agreed to the children being with the mother in Ontario from August 1995 until 20 December 1995. On 15 December 1995, the mother applied for and obtained interim custody of them from a court in Ontario. The father appealed against the order, challenging the jurisdiction of the court. In this he failed, as the appeal court affirmed the decision of the first instance court that it had jurisdiction. The appeal court was told that no application under the 1980 Hague Convention had been pursued before the first instance judge:

The appeal judge’s comment on this is of passing interest, as it shows him to have been accepting of the idea of anticipatory retention, albeit that it is too brief to carry much weight. He said:

In LCYP v JEK, the mother moved with the children from the United States to live in Hong Kong. It was agreed between the parents that the children would remain in Hong Kong on a limited, temporary basis for no more than 2 years, the agreed period ending in around July 2015. In February 2015, the mother made an application to the Family Court in Hong Kong in relation to the children, including seeking sole care and control of them and an order for them not to be removed from the jurisdiction except with consent or leave of the court. In her affirmation in support of her application, the mother said, inter alia, that she had told the children that she would not be returning to the USA under any circumstances and the children had told her they would stay with her wherever she chose, and she asserted that the family would be settling permanently in Hong Kong. The father relied on what the mother said in her affirmation as wrongful retention of the children in Hong Kong and issued a Hague Convention application on 26 February 2015.

The first instance judge found that the mother’s affirmation evinced an intention not to return to the USA at the end of the two year period. She held that the filing of the affirmation was an act of retention and she did not consider the father’s Hague Convention application premature even though the two year period had not yet expired when he applied. However, she refused the father’s application for the return of the children because the child’s objections exception under Article 13 of the Convention had been established. The father appealed.

Having considered recent international developments in the approach to habitual residence, the appeal court concluded that the children were habitually resident in Hong Kong and not the USA at the material time and that the Hague Convention was not therefore engaged (§7.14). It went on, however, to consider what would have been the position if the children’s habitual residence had remained in the USA, agreeing with the first instance judge that the mother’s actions would have amounted to wrongful retention in Hong Kong (§8.1). The court cited its own earlier decision in BLW v BWL, in which a Hague application by a father in reliance upon the mother’s application for custody during the period of an agreed stay in Hong Kong had been found to be premature. The court in BLW v BWL had said:

The mother in LCYP v JEK submitted that her position was the same but the court did not agree. It viewed the issue as “ultimately a question of fact” (§8.5) and concluded that the facts found by the judge entitled her to find wrongful retention, even though the agreed two year stay had not yet elapsed and the mother had indicated that she would comply with any orders made by the court and would not retain the children in Hong Kong in breach of a court order. The appeal court noted that such a conclusion was “consistent with” the views of Lord Hughes at §78 of Re A.

The court in LCYP v JEK expressly moved the law on habitual residence on from the position as articulated in BLW v BWL but, when it came to the separate question of whether the facts were capable of amounting to wrongful retention, it did not expressly depart from the earlier decision, merely commenting that it all depends upon the facts. I do not propose to dwell on where that leaves the earlier decision; what is important for present purposes is that in Hong Kong, it is certainly now accepted that there can be a wrongful retention before the end of an agreed stay away.

In Punter, the Family Court had ordered the return of two children from New Zealand to Australia under the Hague Convention. The mother appealed. The children had originally come to New Zealand in February 2002 pursuant to an agreement between the parents whereby the mother could take them there for two years, following which she would return them to the father for two years, and so on during the children’s minority. In July 2002, the mother applied to the New Zealand court for custody of the children. She disclosed a copy of the agreement but said that she was beginning a new life in New Zealand and believed the children should have the security of knowing that they would not have to be returned to Australia after 2 years.

The court had to determine whether either the making of the custody application or the mother’s supporting statement could amount to a retention of the children in New Zealand in breach of the father’s right to determine the children’s place of residence. Blanchard J, with whom Glazebrook J agreed on this point, held that neither could. He felt that unless and until the court did assume jurisdiction by making the order the mother sought, or the two year period elapsed and the children were not returned, there would not be a retention of the children in any ordinary sense. He found himself in sympathy with the decision of the United States Court of Appeals for the First Circuit in Toren v Toren 191 F 3^rd 23 (1999) and the Scottish case of Watson v Jamieson 1998 SLT 180. Gault P differed and would have held that the mother’s application for custody did amount to a retention. He considered that to hold otherwise would be to defeat the very purpose of the Hague Convention. In his view, the application by the mother to the New Zealand court for custody repudiated the father’s agreed right of custody. If there could be no retention until the expiry of the agreed period, the mother would be able both to rely upon and to repudiate the agreement.

It is of note that in later litigation between the parents, Punter v Secretary for Justice [2007] 1 NZLR 40, Glazebrook J referred to the court’s earlier decision and observed that it was:

In RCL v APBL, the family lived in the UK. The parents agreed that the mother could make a trip with the children to New Zealand in August 2010, returning in March 2011. In January 2011, the agreed stay was extended until November 2012. In June 2011, whilst on a visit to the UK with the children, the mother told the father that she would not be returning the children to the UK in November 2012 or at all. In November 2011, the father applied for an order returning them to the UK. The first instance judge found that there had been an “anticipatory breach of the agreement” amounting to an “unlawful retention” in June 2011 and ordered the return of the children.

The argument was advanced on behalf of the mother that the claimed retention took place whilst the children were within the UK so the Hague Convention did not apply.

On appeal, Gendall J, in the High Court of New Zealand, considered the concept of anticipatory retention. There does not seem to have been any argument against its existence in theory, the active debate being focused upon whether any wrongful retention/removal was made out on the facts, which were reconsidered in the appeal, with different conclusions being reached. Nothing would be gained by a close examination of Gendall J’s factual analysis which culminated (in robust summary) in the conclusion that the mother unequivocally repudiated the agreement whilst in the UK in June 2011, which entitled the father to cancel it, with the result that when the mother took the children back to New Zealand again, it was a wrongful removal from the UK. However, it is worth noting that he seems to have been favourably disposed towards anticipatory retention. He appears to have been inclined to limit the implications of Punter, in that he cited what had been said about it in the later Punter litigation, and described it as “a shuttle custody case in which the majority held that simply applying for custody (without more) was not ‘retention’” (§71). He seems to have preferred Gault P’s reasoning to that of the majority (§72). He also referred to a further case, Secretary of Justice v SB (Retention: Habitual Residence) [2006] NZFLR 1027, which proceeded on the basis of an anticipated retention. There, a mother had travelled with a child to New Zealand for a visit of a few months, but before the agreed period had elapsed, advised the father that she and the child were not returning. The communication from the mother to the father was held to be an anticipatory breach of the agreement and to amount to a wrongful retention.

The family originally lived in Germany. The father moved to live in the United States and in July 1992, one of the children, who had been in the custody of the mother in Germany, was left with the father in Iowa. The intention was for the child to remain with the father for an indefinite period of time but on the understanding that she would eventually return to Germany. No specific date was set for the return. Following attempts to have the child returned to Germany by agreement, in August 1993 the mother began proceedings under the 1980 Hague Convention. There was an issue as to when any wrongful retention began.

In about December 1992, the father had advised the mother that he was considering keeping the child on a permanent basis. In January and February 1993, the parents discussed the child’s return and the father indicated that he would be returning her in February but no definite date was set. By March 31 1993, when the father filed for divorce in Iowa, it was clear to all concerned that it was the father’s intent to keep the child permanently. The judge adopted the mother’s argument that “the date for measuring when the wrongful retention began is March 31, 1993” when the father “clearly communicated to [her] his intention to keep the child on a permanent basis.”

The discussion of the issue is set in the context of the court’s evaluation of the Article 12 settlement “defence” and the court’s deliberation as to whether the one year period ran from the time that the child started living with the parent against whom the application is made or from the date of the wrongful retention. Concluding that it was the latter, the judge commented that “the correct reading of the Convention is that the one year period begins to run from the date the noncustodial parent asserts her rights of custody, which in this case would be March 31, 1993.”

The mother and child resided with the father in Argentina from November 1994 until June 1996 when the mother went with the child to the United States with the father’s agreement, the length of the stay not having been agreed at that point. The father first asked the mother to return in July 1996 but he was asserting that the retention occurred a year later, in July 1997. The judge found that the retention in fact occurred in February 1997 when, to the father’s knowledge, the mother moved out of her mother’s apartment and rented her own place, thus clearly communicating to him that she was refusing to return to Argentina with the child in compliance with his request for her to do so. As he put it in his summary, it was then that the mother “communicated by both word and deed that she would not return to Argentina with [the child] as [the father] had requested in July, 1996.”

The parties’ agreement permitted the children to live in Massachusetts until 21 July 2000, then returning to their home state of Israel. In July 1996, the mother and children moved to Massachusetts. In July 1997, the mother filed a complaint for custody with the Massachusetts court, the relief sought including modification of the father’s agreed visitation rights; she obtained temporary orders. The father applied for orders returning the children to Israel relying on wrongful retention. It was held that the facts did not amount to retention at all, let alone wrongful retention. The court discounted the children’s mere presence in the USA up to the 21 July 2000 because it was consistent with the parties’ agreement. Dealing with the possibility that the mother’s application to the Massachusetts court could amount to a retention, it said:

The father had argued that the mother had evinced an intention not to return the children in July 2000 and relied upon this as a wrongful retention. The court did not find it established that she had evinced such an intention but was clear that it would not have granted a remedy on such a basis in any event, observing:

The mother and child left the family home in Greece on 1 July 2005 for a planned vacation in the USA, the parents agreeing that they would return to Greece on 15 August 2005. On 4 July 2005, the father was served with a notice that the mother intended to remain with the child in the USA. Although the father requested the return of the child in November 2005, it was not until 11 August 2006 that his application for the return of the child was filed. The mother contended that the child should not be returned because the petition was filed more than one year after the wrongful retention of the child and the child was well settled in her new environment. Her argument was that the retention of the child became wrongful as soon as the father became aware of her intention not to return, on 4 July 2005, whereas the father argued that the wrongful retention only began in August 2005 when the mother failed to return to Greece as agreed. The court accepted the father’s argument. It said that the father “probably could have filed suit immediately upon learning of [the mother’s] intention to wrongfully retain the child” but “also had the right to wait to file suit until after the retention became wrongful”, which was on the agreed return date in August.

The mother alleged that the father wrongfully retained the child in the United States. The parties agreed, when the child left the mother in Finland in June 2003 to stay with the father in the United States, that the child would choose where she would reside after the summer and would not necessarily return to Finland in August 2003. The District Court had held that there was a retention of the child by the father on 28 August 2003, when the mother filed her petition for the child’s return, unequivocally signalling her opposition to the child’s presence in the United States and clearly communicating her desire to regain custody and asserting her “parental right to have [her child] live with her.” The mother argued that there was “no legal basis for setting the date of retention as the day on which she unequivocally communicated her opposition” and that the proper date of retention was earlier. The appeal court concluded that it did not have to decide “whether a child is not retained under the Convention until a parent unequivocally communicates his or her desire to regain custody”. It assumed that this standard applied, but found that in fact the mother had clearly communicated her opposition at an earlier date (page 15). By mid-July 2003, she had withdrawn her consent to the child remaining in the United States beyond August 10 2003 and the father was aware of that. The date of retention was found to be August 10.

In this case, the respondent father argued that the mother’s application had not been filed until more than a year after the wrongful retention of the child, arguing that the wrongful retention took place when he put the mother on notice that he would not be returning the child as scheduled, rather than when the child did not actually return. Relying on Toren v Toren, the mother argued that conveying an intention not to return the child cannot be a wrongful retention and that there was no such retention until the father took action inconsistent with the parties’ custody agreement, actually failing to return the child as agreed. The court preferred the mother’s argument (§25) classing the father’s communicated intent as “an anticipatory retention”, which was not a wrongful retention within the Hague Convention. The court commented:

This decision is not directly about anticipatory retention. It examines the Article 12 settlement “defence” and rules that the concept of “equitable tolling”, which is part of the American domestic law, does not apply in the 1980 Hague Convention context. It is relied upon by the mother in this case in order, amongst other things, to underline that our approach to the Convention should not be driven by domestic principles, or (to put it as it is put at page 9 of the opinion of the US court) “that we cannot export … background principles of [English] law to contexts outside their jurisprudential home”, and particularly not when interpreting a treaty. I doubt that counsel for the father would challenge this proposition, although they do invite us to have reference to certain domestic contractual principles in deciding the issues about anticipatory retention. It may still be worth setting out a summary of the case, not least because it is an example of the sort of problems that can occur where return is not sought until long after the wrongful removal of the child and Article 12 settlement considerations are in play. In due course, it will be necessary to consider the Article 12 implications of the rival contentions in relation to anticipatory retention.

The mother brought the child from England to the USA. The father did not locate them until more than 16 months later. He then sought a return order which was refused because his petition was filed more than one year after the removal of the child and the child was now settled in New York. The central question was whether, where the whereabouts of the child have been concealed, the one year period could be extended by virtue of the doctrine of equitable tolling, which pauses the running of a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action. The Supreme Court decided that it did not apply in the Hague Convention context, and nor could the one year period be otherwise extended to deal with concealment.

In the opinion of the court, it was noted that those drafting the Convention had not chosen to run the period from the date on which the petitioning parent learned of the child’s whereabouts (page 13/14). It was also noted that the one year period does not eliminate the remedy the Convention affords to a left behind parent, namely the return of the child (page 12). Even after the period has elapsed, the court’s obligation is still to order the return unless it is demonstrated that the child is now settled. Rejecting the father’s argument that equitable tolling was necessary to deter child abductions, the court observed that the Convention does not pursue the goal of discouraging child abduction “at any cost” and that the child’s interests may overcome the return remedy. It also observed that American courts had found as a factual matter that steps taken to promote concealment can prevent the stable attachments that make a child settled (which, I observe, is similar to the position in the courts of England and Wales). In the separate concurring opinion of three of the justices, there is a clear explanation of the disadvantages of imposing equitable tolling in a Hague case (see page 6).

The child came from New Zealand with the mother to stay in Australia for the Christmas holiday period. Before the agreed date for return, the mother telephoned the father and said she would not return the child to the father on 20 January 2002 as agreed. The child was not returned on that date. The court held that the wrongful retention of the child occurred following the 20 January 2002, not when the mother notified the father she would not be returning the child. On the chronology of the case, this meant that the mother was unable to rely on the settlement “defence” which she could have advanced if the wrongful retention took place on the earlier date.

The court was concerned with the Family Law (Child Abduction Convention) Regulations 1986 through which the 1980 Hague Convention operated in Australia. The court noted that retention of a child was defined by reference to a breach of the rights of custody of a person and took the view that there could be no retention until there was an actual breach of rights of custody. It considered it to be significant that the relevant regulation did not speak of threatened retention, but of actual retention. Earlier decisions of the Australian courts were considered and the following passage from §108 of the Explanatory Report by Elisa Perez-Vera on the 1980 Convention was quoted:

The core of the reasoning was contained in §38 of the decision where the judge said:

Neither of these two South African cases, both brought under the 1980 Hague Convention, advances the present debate in my view. Although there is mention of “anticipatory breach” in each of them, the issue is not discussed, the outcomes being dictated by the facts as analysed by the judge.

In NF v MC, the father sought an order for return on the basis that he had not consented to the child residing with the mother in South Africa beyond 29 December 2012. The matter came before the court in November 2012 and one of the grounds upon which the mother opposed the application was that it was premature, being based on anticipatory breach, but the judge did not need to address this as she concluded that there was, in fact, no agreement that the child would be returned on 29 December 2012.

In AA v LA, the father sought the summary return of his two children to the USA on the basis that they had been wrongfully retained by the mother in South Africa. His application was said to be “premised on an anticipatory breach of an alleged agreement”. The judge dismissed the application because it had not been established that there was an agreement for the return of the children by a fixed date and, by the time of the earliest date on which they could conceivably have been retained in South Africa, they were no longer habitually resident in the USA.

Given the extent of my review of the authorities, it might be helpful to attempt to summarise where things appear to stand internationally on the subject of anticipatory retention. I propose to do this in the form of two tables, in the hope that this may make it easier to digest. What emerges is that there is no unanimity of view on the topic, the outcome of the cases often seeming to depend upon the particular facts, and nor is there any particularly extensive discussion of the pros and cons of possible approaches to what is a complex problem.

In what follows, in the interests of economy and clarity, I will sometimes need to refer to established legal concepts in a shorthand way which does not necessarily capture all the nuances involved in them. References to the exceptions to return under the 1980 Hague Convention as “defences” come within this category and it is worth mentioning also habitual residence. For the most part I speak as if habitual residence is either in the home country or the new country, including speaking of a “change of habitual residence”. In using this terminology, I am not intending to undermine the proposition that it is possible (although highly unlikely, see Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] UKSC 4) for a child no longer to be habitually resident in the home country and equally not yet to be habitually resident in the new country.

Although the obvious starting place for a consideration of whether the 1980 Hague Convention recognises anticipatory retention, and if so in what form, might be thought to be the wording of the Convention itself, it seems to me that it might help first to look at the general nature and purpose of the Convention and the way it works in practice. We have had the benefit of extensive submissions covering this territory, in the course of which each side has argued that this or that consideration supports their position. I will start with these broader submissions and come ultimately to consider the terms of the Convention in the light of them.

For the father, Mr Williams and Ms Renton submit, uncontroversially, that the purpose of the Convention is to protect children from the harmful effects of abduction and that it seeks to restore the child to his or her home country to enable that country to undertake a welfare enquiry, and also to prevent the abductor from obtaining a jurisdictional advantage by unilateral action. They submit that an approach which recognises anticipatory retention will promote these aims, a proposition which is not accepted by counsel for the mother.

Mr Williams and Ms Renton also rely upon the principles of EU law and EU Charter rights, as well as Article 9 of the United Nations Convention on the Rights of the Child, seeking to stress the fundamental right of a child to maintain direct and regular contact with a parent, and inviting the court to interpret the 1980 Hague Convention in the light of them. I do not think it is necessary to labour these provisions or to become involved in the dispute between the parties as to the role that they play in a 1980 Hague Convention setting, because they do not seem to me to add significantly to the established position. The best interests of the child are firmly at the core of the 1980 Hague Convention, or, to use the terminology of the Supreme Court in Re E (Children) [2011] UKSC 27 (§14), “at the forefront of the whole exercise”. When considering any aspect of the operation of the Convention, it is important to pay full attention to the interests of individual children, and also to the interests of children in general who benefit from a Convention which, by its robust and effective remedies, successfully deters would-be abductors from embarking on the enterprise in the first place. From the very outset (as can be seen from the Convention itself, underlined by the explanatory report of Elisa Pérez-Vera in 1982), the importance of promptly restoring the status quo which had been disturbed by the actions of the abductor was recognised, as was the importance of rights of access, which were themselves the subject of express provisions in the Convention.

Mr Williams and Ms Renton emphasise the importance of having in mind, when considering the issue of anticipatory retention, the recent developments in relation to habitual residence, particularly the fact that there is no longer any “rule” preventing a child’s habitual residence from changing without the agreement of both parents. They are right to do so, in my view, because that development of the law may, in some cases, accelerate the loss of the child’s habitual residence in the original home country. As a summary return under the Hague Convention is only a possibility if the child remains habitually resident in his or her home country at the time of any retention, loss of habitual residence in this way may remove the case from the scope of the Convention. As counsel point out, the problem of a change of habitual residence is not likely to arise in cases where only a short holiday has been agreed, because a child who is away from home for a short time on holiday is likely to retain his or her habitual residence in the home country right up to the agreed return date, even in the face of an earlier unilateral decision by his or her parent not to return. In contrast, difficulty can arise where, as in this case and as is not uncommon these days, there is agreement for a longer period away.

Mr Williams and Ms Renton argue that the only way to address the problem of habitual residence changing during a temporary absence and disabling the left behind parent from seeking a remedy under the 1980 Hague Convention is to accept that there can be wrongful retention before the end of the agreed stay. This would diminish the chances of the child having lost his or her habitual residence in the home state by the time of the wrongful retention. The impact may be easier to understand if one takes a simple (theoretical) example. Suppose the agreement is for the mother and children to spend 15 months away from their home country of Australia in England. After the first week in England, the mother decides she is not going to return the children. If that decision were to be treated as wrongful retention, the relevant time for establishing the habitual residence of the children would be only one week into their stay abroad. The overwhelming likelihood is that, at that point, they would still be habitually resident in Australia. Contrast the situation if there were to be no wrongful retention until the end of the agreed stay. By then the children would have been living in England for 15 months and, in determining their habitual residence, the court would have to take into account the passage of time, during which the children may have been settling in to their new living arrangements. Mr Williams and Ms Renton would underline, I think, that the mother might even have been deliberately taking steps to integrate the children in this country so as to encourage a finding that they are no longer habitually resident in Australia by the time she ultimately retains them here. Their argument would be that the quid pro quo for the children’s agreed absence from Australia was that the mother would return them by the appointed date and that her unilateral decision/acts to the contrary amount to a renunciation of the agreement. However, they point out, she would have been able to take advantage of the whole period of the agreed stay to improve her chances of resisting an order for summary return under the Convention. I will come on to consider the precise nature of event that might count as anticipatory retention but, putting it very loosely for the moment, Mr Williams and Ms Renton submit that to guard against this, the clock needs to be stopped when it is clear that the return of the children is not intended. As it was put in Re S (supra), the mother should not be allowed to have the benefit of the agreement without the burden.

Although habitual residence considerations are clearly material to the debate about anticipatory retention, there are other considerations to take into account, and arguments to be set against those advanced on behalf of the father. As Mr Setright observed in oral submissions on behalf of the mother, one of the difficulties in dealing with the 1980 Hague Convention is that when you put in one piece of the jigsaw, other pieces are affected. It is not easy, therefore, neatly to compartmentalise the arguments under discrete headings, flowing logically from start to final conclusions, let alone to identify any obvious solution to the issue that has to be determined.

First, it should be noted that accepting that there can be wrongful retention in advance of the agreed return date will not necessarily secure a remedy for the left behind parent. In longer stays abroad, it is possible that habitual residence in the home country will already have been lost by the time of the retention in any event. Re R (Children)(Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2016] AC 76 illustrates this. In July 2013, the children went with their mother from their home country of France to Scotland, where it was agreed they would stay for about a year whilst the mother was on maternity leave. When, in November 2013, the mother served the father with notice of proceedings in Scotland in which she sought a residence order and an interdict against the father removing the children from Scotland, he brought Hague Convention proceedings alleging wrongful retention. His claim failed because it was found that the children were already habitually resident in Scotland by November 2013. It was therefore unnecessary to decide whether the mother’s action was in fact a wrongful retention, notwithstanding that it was well before the end of the agreed stay away.

Secondly, Mr Setright and Mr Gration point out that the existence of an agreement for the children to stay abroad for a period of time shows that the parent who is staying behind was originally of the view that that period away was consistent with the children’s interests. Looking at things from the children’s perspective, why should it become harmful for them to remain abroad for that period just because the other parent has decided not to honour the agreement to return them at the end of it, they ask? Why is it not consistent with child welfare that an order under the Hague Convention becomes available only once they are not returned on the appointed date?

Thirdly, there is the Article 12 problem, that is to say the possibility that in some cases fixing an earlier date for the wrongful retention might generate a settlement “defence” under Article 12. To return to my simple example of the family who come from Australia for a 15 month stay, let it be assumed that something which would constitute wrongful retention happens at the end of the first week in England, but the father does not get to know of it until he attempts to take proceedings following the mother’s failure to return the children at the end of the 15 months. The Hague proceedings would have been commenced more than 12 months after the date of the wrongful removal. Return could still be ordered under Article 12 but, rather than there being the normal sort of robust summary return, if it were to be demonstrated that the children were now settled in their new environment, the court would have a discretion whether to return them or not. In contrast, if the wrongful retention occurred only at the end of the agreed stay, no question of a settlement “defence” could arise. Mr Setright and Mr Gration submit in the light of this that for every left behind parent who will benefit from the recognition of a concept of anticipatory retention, there will be another who is anxious to have the date of the wrongful retention set as late as possible so as to avoid problems with a settlement “defence”.

Mr Williams and Ms Renton seek to address the Article 12 problem by proposing that the left behind parent should have an election, being able to choose either the earlier or the later date as the operative wrongful retention. Mr Setright and Mr Gration respond that there is no example of such an election to be found in the authorities (although I think that the court in Philippopoulous might have been contemplating it). It would introduce gross uncertainty, they submit, and would also fly in the face of the House of Lords authority, In re H [1991] (supra), to the effect that wrongful retention is an event which occurs on a specific occasion. And, they ask, where does it leave the child? The left behind parent agreed to an absence of, say, 15 months, but can then choose either to let the child stay for the 15 months or to require him or her to return sooner.

I am not attracted to the idea of an election for the left behind parent, even though it might assist with the habitual residence/settlement problem. Counsel for the father argue that providing a choice need not lead to uncertainty or to more complex and extended hearings because it would be quite easy to manage the issues, but I am not as sanguine as they are on this score. I have to accept that if the concept of anticipatory retention is recognised at all, there is a real possibility that this will, in some cases, result in longer and more complex hearings, notwithstanding attempts to control this by robust case management; I will return to this theme later. It is difficult to predict reliably whether the situation would be significantly aggravated by also permitting the left behind parent to elect which “retention event” to rely upon but I would not rule out the possibility that it might be, particularly if the proceedings begin on one basis and the left behind parent then seeks to shift the focus to another part of the history, perhaps in response to the other parent’s case and/or based on the material produced in support of it as occurred here. On the other hand, it has to be recognised that the courts are already regularly faced, in Hague cases, with parents (both applicants and respondents) presenting their cases in the alternative (see for example RS v KS), and that the arguments can sometimes evolve significantly during the proceedings.

I do think there is a degree of force in the submission made by counsel for the mother that an election would run counter to In re H [1991]. That is a consideration which ought to carry weight because not only is In re H a House of Lords authority and binding upon us, it has also been influential in the development of jurisprudence in relation to the 1980 Hague Convention in other countries, see for example the reference to it at §61 of RCL v APBL (New Zealand)(supra).

Lord Hughes said of In re H in Re A at §78 (supra) that it “holds no more than that a specific act of retention must be identified”. That interpretation would, of course, leave open the possibility that there might be more than one event of retention, with the “specific act of retention” being identified by choosing between them. But Lord Hughes was not focussing, in Re A, on the possibility of there being more than one act of retention, so I am not sure that his observation takes matters very far. In re H was not focussed on this possibility either, but it does not seem to me that Lord Brandon’s conception of the Hague Convention would readily accommodate the idea of there being a menu of acts of retention from which the left behind parent can choose. Acknowledging that in ordinary language “retention” usually does connote a continuing state, Lord Brandon decided that its alternative meaning, namely “an event occurring once and for all on a specific occasion” (page 498D), was the meaning applicable in the Hague Convention (page 499G). He was influenced by the need to have a fixed date for the start of the one year period in Article 12, and that could be achieved by picking one from a number of wrongful retention events. However, it seems to me that the menu model only works if retention is seen either as a continuing state or as an event which has been repeated on more than one occasion, thus giving rise to there being various dates available for selection. That does not fit well with Lord Brandon’s express rejection of the argument that retention was a continuing state of affairs, in favour of the finding that it was a once and for all event.

Adding to my disinclination to accept Mr Williams and Ms Renton’s election argument is my concern about the implications of giving a parent a choice by means of which he might be able to circumvent child-focused provisions built into the Convention. By careful choice, a parent could avoid the settlement defence in Article 12 by picking a later date for the wrongful retention or, in another case, defeat the consequences which were intended to flow from a change of habitual residence by choosing an earlier date. The choice would have the potential to affect the nature of the court’s role in the case, as can be demonstrated by returning to the 15 month Australia/England example. If, in that example, the earlier date were to be chosen, problems with habitual residence would be avoided but, if the children had become settled in England over the intervening period, Article 12 would give the court a discretion as to whether they were returned. On the other hand, if the later date were to be chosen, assuming habitual residence still to be in Australia and the Convention therefore still to be applicable, Article 12 would leave the court no discretion unless one of the exceptions to return were to be established. RS v KS (supra) is an example of a case in which this sort of situation arose. It will be recalled that Macur J dealt with it by holding that the retention occurred on the date when the child should have been returned to Lithuania (so there was no question of a settlement defence), but that a return would expose the child to an intolerable situation (Article 13(b)) and the child should not be returned. The father in that case was not given an election as to which date was treated as the operative date. The outcome depended on the judge’s interpretation of the facts, which left scope for the mother’s reliance on Article 13(b), but this would not always be the case.

Given the careful structure of the Convention with its inbuilt safeguards to protect individual children from harm, it seems to me that it would be unfortunate if a parent could control or influence the outcome of an application tactically in this way. In saying this, I do not overlook the argument that it is the parent who has gone back on the original agreement who is at fault and that the left behind parent should be given whatever tools are available in order to minimise the scope for taking advantage of that fault. This is not irrelevant, but ultimately it seems to me that it is the interests of children, both children in general and the individual children caught up in the individual case, which need to be kept at the forefront of the consideration.

I mentioned earlier that Mr Williams and Ms Renton invite us to draw parallels with the law of contract, upon which they rely in support of their case for anticipatory retention, including in relation to the notion of an election. Although I do not dismiss the analogy with contract as entirely irrelevant, I would not wish to import contractual principles into the analysis as such, either in relation to election or more generally. I have already referred to the American case of Lozano v Montoya Alvarez with its warning that domestic law principles should not be exported and used to interpret a treaty. This makes obvious sense in view of the fact that the interpretation of the 1980 Convention has to be global. Furthermore, there is a tendency to festoon the Convention in sub-rules and technicality. This is unhelpful for an instrument which is meant to provide a swift, robust and summary remedy, and the jurisprudence of recent years shows that it is to be resisted. Incorporating the English rules about anticipatory breach of contract (or renunciation) into Hague cases would almost inevitably result, I am afraid, in a plethora of technical arguments based on contract law cases. In addition, recourse to the detailed principles of contract law would be wholly inappropriate in a situation involving a family, because the domestic context is usually so very far removed from the sort of context in which a contract would be formed.

I turn now to the question of alternative remedies. Counsel for the father argue that anticipatory retention needs to be classed as wrongful retention under the Convention so as to ensure that a remedy is available to a parent who has been betrayed by the early renunciation by the other parent of an agreement for a temporary stay abroad. It would be wrong to assume, however, that the lack of a 1980 Hague Convention remedy leaves the left behind parent without an effective remedy of any kind. There are, of course, significant advantages to a Hague Convention application. It is speedy. The Central Authorities of the Contracting States concerned are there to assist the parent in the process and, at least in this country, public funding is readily available to him or her. Furthermore, the child is in the country where the proceedings are taking place and can easily be provided with an opportunity to be heard in whatever way is considered appropriate in that country. However, I think it is fair to say that other remedies will usually be available.

In reviewing the alternative remedies, first consideration has to be given to the question of jurisdiction (that is to say which country is entitled to entertain proceedings in relation to the child and what sort of proceedings can be entertained). Depending on the countries involved and the place of the child’s habitual residence, this may be governed by Council Regulation (EC) No 2201/2003 (“Brussels IIA”) or the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”). Where these are not applicable, jurisdiction will depend upon the principles applicable in the country concerned. I do not intend to extend what is already an over-long judgment by looking further into the detail of the jurisdictional rules. I think it can fairly be said that in most cases it is likely that, by one route or another, there will be a court with jurisdiction to make orders about the child’s situation, including an order for the child’s return to what was his or her home country. That order would then need to be enforced in the country where the child is, but assuming Brussels IIA or the 1996 Convention applies, that should be a relatively straightforward process.

It may be worth pausing to observe that, on facts similar to those of this case, should there be an obstacle to a Hague remedy because the children have become habitually resident here, the father may be able to seek an order from the English court under its inherent jurisdiction for their summary return to Australia. Although an application under the inherent jurisdiction is governed by the welfare principle, Re J [2005] UKHL 40 establishes very clearly that the court has power to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits when that is in the best interests of the child. I cautiously say “may be able” to seek such a remedy because, depending on the precise facts found, there might be complex arguments as to how the various jurisdiction provisions apply.

If a remedy were not to be available in the courts of the new country for jurisdictional reasons, then it is to be expected that the left behind parent could generally have recourse to the courts of the home country, which would retain jurisdiction to deal with welfare issues in relation to the child. Taking the facts of this case as an example, suppose that the father learned in November 2015 of the fact and content of the mother’s application for British citizenship for the children. At this point, assuming for the sake of argument that the Australian law broadly resembles our own, he could make an application to the Australian court for an order that the children must, in their best interests, be returned forthwith to Australia. If such an order were to be made, it would render the continued retention of the children in this country by the mother wrongful. That would entitle him to apply under the 1980 Hague Convention for the summary return of the children, even if the concept of anticipatory retention is not recognised, because the retention would no longer be merely anticipatory, it would be actual retention, in breach of rights of custody.

I have couched the preceding paragraphs in rather guarded language because it is difficult to be sure what precise remedies would be available to a parent when much depends on what provisions govern the situation (Regulation, Convention, national law), and neither the precise facts nor the terms of the applicable legal provisions can be reliably foretold. All that I seek to demonstrate is that it should rarely be an all or nothing situation – 1980 Hague remedy or no remedy at all. I do not therefore think that it would be appropriate to allow the answer to the question of whether the 1980 Convention classes anticipatory retention as wrongful to be dictated by a perception that otherwise the left behind parent will be left without remedy. That is not to say that I would dismiss from consideration the disadvantage to the left behind parent of being unable to obtain a summary return order under the Convention, merely that determinative weight should not be given to this.

I referred earlier to the possibility that embracing the concept of anticipatory retention may extend the range and length of hearings under the Convention. I should say a little more on the subject as it features particularly in the submissions made on behalf of the mother. Mr Setright and Mr Gration submit that if we were to go down this path, it would generate a whole new area of factual enquiry in Hague applications. There would inevitably be wide-ranging and extensive evidence and probably lengthy cross-examination, with the hearing commencing without any certainty as to the key date, which would only be known once determined by the court. This would introduce undesirable complication and uncertainty in their submission.

This is not accepted on behalf of the father. His counsel submit that the courts are experienced in dealing with these sorts of issues and matters could be controlled by effective case management. In their submission, it may be possible not to have any oral evidence at all, there often being extensive written communications from which the relevant facts emerge. However, if oral evidence is needed, they say that it can be short. In the vast majority of cases, they argue, the issues will be identified and addressed in the documents filed in preparation for trial. They acknowledge that, in this particular case, the April date emerged in the oral evidence, but comment that that can happen in any trial.

It is difficult to forecast with any certainty what impact the clear recognition of anticipatory retention would have upon hearings in 1980 Hague cases. The paucity of domestic authorities on the subject suggests that the issue has not, in fact, come up in the courts of England and Wales that frequently. This may, of course, be because the tendency has been to approach matters on the basis that the retention occurs at the end of the agreed stay abroad, which makes it relatively simple to establish whether the case is made out or not. On the other hand, it may be that there are actually relatively few cases in which a question of anticipatory retention arises on the facts. Where the facts would allow a case of anticipatory retention to be run, I would not rule out the possibility that it might introduce complexity into the proceedings and extend the length of them. The extent of the problem may depend upon the nature of the events which could qualify as anticipatory retention, to which I will turn shortly. I do not see case management as a complete answer to this potential problem, although I will look again later at certain aspects of case management in 1980 Hague cases.

Having looked at some length at the factors referred to by the parties as potentially material to the question we have to determine, I have concluded that none definitively dictates an answer to it. So I come back at last to the Convention itself, the terms of which should be interpreted in a way which gives it as full and sensible an effect as possible, and, in so far as is feasible, in a way that achieves consistency with the practice in other Contracting States.

Nothing in the wording of Article 3 or Article 12 tells us in terms that wrongful retention occurs only at the end of the agreed stay abroad, but equally there is nothing to say that it can occur before that point.

Counsel for the mother invite us to focus upon the fact that, by Article 3, a retention is only wrongful if it is in breach of rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the retention and, at the time of the retention, those rights were actually exercised or would have been exercised but for the retention. By Article 5, it is made clear that rights of custody include the right to determine the child’s place of residence which, I agree with counsel for the mother, extends to include a right to veto the child residing in a particular country. Mr Setright and Mr Gration submit that once a parent has agreed to a child being removed abroad for a period of time, there can be no breach before the agreed return date, the breach being the failure to return at the end of the agreed period.

I accept entirely that it is essential to have regard to the need to identify a breach of rights of custody, but I do not agree that such a breach can only occur at the end of the period of the agreed stay. It might be helpful to explain this by looking at one of the illustrations relied upon by counsel for the mother in support of their submission. Under section 13 of the Children Act 1989, a parent named in a child arrangements order as the person with whom the child is to live is permitted to take the child abroad for a period less than one month. Suppose, say counsel, that seven days into the trip, the parent announces they are not bringing the child back. They submit that that would generate a flurry of concern and activity, but there would be no breach of the law or of custody rights until the child was not returned at the end of the month.

I agree that, in a section 13 situation, there would not be any breach of custody rights until the end of the month, unless, of course, a court order were to be obtained from the domestic court requiring an earlier return on welfare grounds. Similarly, if a parent were to announce in advance an intention not to return at the end of a court authorised stay away, I do not think that would be a breach of rights of custody unless and until a variation of the order was obtained, requiring an earlier return. I was initially attracted to the idea that parallels might be drawn between these situations, where absence is permitted by statute or court order, and absences agreed between the parents. However, upon reflection, I think there is a strong case for viewing agreed periods abroad differently. It seems to me that there is a contrast between a situation set up by court/statute, where the permitted stay can only be curtailed by intervention of the court, and a situation set up by the parents themselves. The parental agreement is predicated on the undertaking of the parent who is taking the children abroad that they will be returned at the end of the period; he or she has the benefit of taking them abroad and the burden of returning them (to echo Wall J in Re S). Once that parent casts off the duty to return them at the end of the stay, the basis for the agreement is removed, in contrast to the section 13 permission or the court order which remain. It seems to me that, in legal theory, it must in those circumstances be possible for retaining the children abroad to constitute a breach of the other parent’s rights of custody, even though the date originally fixed for their return has not yet arrived. Whether there is, in fact, such a breach will naturally depend upon the attributes of the left behind parent’s right of custody and the facts of the particular case.

It can be seen from the decided authorities, domestic and international, which I set out at length earlier, that others share the view that there can be a breach of rights of custody prior to the end of the agreed stay. Without such an acceptance, anticipatory retention would be a non-starter, yet my review of the authorities shows that it has been accepted, in principle or in practice, in quite a number of countries, although others have obviously rejected it, notably Australia.

Having looked at all the various arguments pulling one way and the other, I do not find it at all surprising that there is no unanimity of view on the subject of anticipatory retention. No doubt the intrinsic difficulty of the issue has been compounded by the influence of the facts of the cases in which it has arisen, which may well have attracted the court to a particular solution which would meet the justice of the particular case. The assembled jurisprudence shows that the circumstances which might constitute anticipatory retention are diverse. It seems to me that they could range from privately resolving not to return the children at one end of the spectrum to taking action in a form that rendered it impossible to return the children at the other. There has been a tendency to reject decisions which have not been communicated to the other parent as incapable of amounting wrongful retention (see, for example, Sir Michael Kerr in Re AZ, Macur J in RS v KS). However, there has been a degree of readiness to accept that clearly communicated decisions could be sufficient (see, for example the Scottish case of CM v ER, the American case of Slagenweit, the New Zealand case of Secretary of Justice v SB) but not by all courts (see for example the American case of Falk v Sinclair where the retention occurred when the father actually failed to return the child as agreed not when he communicated his intention to do so, and the Australian case of BW).

Some judges have shown a willingness to accept acts as amounting to anticipatory retention. Going to court to seek an order in terms different to the agreement has quite often been considered as a possible instance of this, though with mixed success, very much dependent on the particular facts. For example, Sir Michael Kerr would have accepted that obtaining a residence order and a prohibited steps order amounted to wrongful retention in Re AZ, and in LCYP v JEK in Hong Kong there was acceptance that filing an affirmation in support of an application in relation to arrangements for the children which evinced an intention not to return would be anticipatory retention, but in Punter in New Zealand neither the custody application nor the supporting statement were sufficient. Communicating an intention not to return clearly by another form of action has also counted on occasion, see Zuker v Andrews where the wrongful retention was when, to the father’s knowledge, the mother moved into her own accommodation.

I have found it helpful, in reaching my own decision as to whether the concept of anticipatory breach is to be accepted at all, to start with the two ends of the spectrum. Taking first the parent who simply resolves in his or her own mind not to return the children, I would not accept that that would be wrongful retention and nor do I think that Mr Williams and Ms Renton really contend for this, partly because they submit that a private decision will always, in fact, be accompanied by overt acts, in the form, for instance, of making arrangements for the longer stay. To treat a private decision on its own as a wrongful retention of the children might well risk a significant expansion of Hague hearings so that counsel could explore, in cross-examination, the thinking of the parent with the children. Trawls through diaries and communications with others might be pursued with a view to finding material suggesting a resolve not to return. Furthermore, private decisions are always open to change, especially when they are about family life, and perhaps particularly so at times when the adults’ relationship is troubled. By the time the date for returning the children arrives, the parent may have come full circle and may in fact return them as agreed.

On the other hand, cases at the other end of the spectrum, where, having decided not to return the children, a parent proceeds to put it out of his or her power to do so, encourage me to the view that anticipatory retention must be recognised by the Convention. If this sort of situation were to arise, to the knowledge of the other parent, it seems to me that it would be perplexing if it could not be treated as wrongful retention at the point at which return becomes irretrievably impossible. To expect the other parent to await the agreed return date before bringing a Hague application in those circumstances would seem absurd, given that nothing could change over the intervening period.

I find myself, therefore, accepting that wrongful retention can occur before the agreed date for the children’s return arrives but, in common with others who have struggled with the issue in the cases I have reviewed, concluding that whether it has or has not occurred is a question of fact. I do not propose to attempt to catalogue the attributes of an actionable anticipatory retention, even though I appreciate that there may be those who complain that it would be desirable for this court to give guidance. There is clarity at the two ends of the spectrum but I acknowledge that there is much middle ground which is relatively uncharted. I need to deal with the father’s challenge to Judge Bellamy’s rejection of the three candidates for anticipatory retention that he put forward in this case, and that may reveal a little more of the shape of the concept. But ultimately I am afraid that it will have to be worked out on a case by case basis.

The three dates on which anticipatory retention might have occurred are set out at §12 above and my resumé of Judge Bellamy’s decision about each of them follows thereafter.

The first date was 4 November 2015 when the application for British citizenship for the children was submitted. The father’s focus here is upon the representations made in the letter in support of the application (see §6 above). His counsel argue that the letter and the supporting documents filed with it made very clear the mother’s intention not to return the children to Australia. Lodging that application in those terms was, they say, an act in breach of the parents’ agreement. They complain that the reasons that Judge Bellamy gave for his conclusion that this was no anticipatory breach fail to address that essential point.

Counsel for the mother support Judge Bellamy’s decision. As they point out, and as the judge found at §§22 and 59, something had to be done to regularise the children’s immigration status given that they had entered on the basis of six month visitors’ visas which expired in November. The application for British citizenship has to be seen in the light of that imperative and, without the statements in the solicitors’ supporting letter, I do not think the making of it would even be a candidate for wrongful retention.

As to the supporting letter, Mr Setright and Mr Gration stress that the intention of the person alleged to have retained the child is very important. I agree with them. I find it very difficult to contemplate classing a situation as anticipatory retention unless the parent actually intends to retain the child. The question of what the contents of the letter really revealed about the mother’s intention here is confused by the mistake that appears to have been made about whether the Home Office had a discretion with regard to granting citizenship. The grant depended upon whether statutory criteria were fulfilled but the writer of the letter appears to have assumed that it was necessary to persuade the Home Office into exercising a discretion. I am not for a minute suggesting that a mistaken belief that persuasion was needed was an excuse for the submission of misleading information to the Home Office, but I do think that the existence of this misapprehension was a factor that could be borne in mind in considering whether the contents of the application did in fact establish a firm resolve on the part of the mother, at that point, not to return the children to Australia.

Also relevant was the judge’s evaluation of the mother’s own evidence as to when she decided she was not returning the children. The mother’s counsel submit that what emerged from her oral evidence at the hearing was that she had not formulated an intention not to return them at the end of the agreed stay until the end date was approaching. What Judge Bellamy recorded about this is contained in §34 of his judgment which I will set out in full here:

Although it could have been more clearly spelled out, taking what Judge Bellamy said in §34 together with his rejection of the November date, I think it is tolerably clear that he accepted that the mother did not decide she was not returning until some time into 2016. It would not have made sense to speak of the decision date being unclear and then to refer to April 2016 if the judge had, in fact, concluded that the mother had already decided not to return by November 2015. It follows that, notwithstanding the terms of the letter to the Home Office, it had not been established that it in fact reflected a decision on the part of the mother.

In the light of this, I would not interfere with the judge’s conclusion that the circumstances surrounding the application for citizenship did not amount to a wrongful retention.

The next date is 11 February 2016 when the mother told the father by email that she did not know what her plans were but short term she would not be returning in May. Counsel for the father submit that a correct and straightforward interpretation of this email is that the mother was saying she was not returning in May or thereafter and the judge was wrong to interpret it as ambiguous, especially when it is put in the context of the mother’s evidence about her state of mind in the spring of 2016.

In argument, Mr Williams referred us to the mother’s statement in which she had said (§27 et seq at B94) that she was relieved when the father told her in an email in March 2016 that he was coming to the UK to visit the children because it indicated to her that he “was not going to force our return after a year and had accepted that the children and I would be staying in the UK indefinitely.” It does not seem, however, that this was relied upon in front of Judge Bellamy as constituting a retention in March, the focus being instead upon February and April. In the light of the way in which the evidence evolved orally, culminating in the mother’s evidence (found at C47 in the bundle) that by April she “felt” that they would not be going back, this is probably not surprising.

The judge does not seem to have been persuaded by the father’s submission that the mother was evasive in court (see §59 of the judgment) and, as I have already observed, seemed to be accepting her account as set out in §34. On that basis, the mother cannot have reached any settled view about the longer term when she wrote the 11 February email. It is hardly necessary to stress that this court does not interfere lightly with factual findings made by judges who have heard oral evidence as Judge Bellamy had. It was very much up to him, in the light of the evidence that he had heard, and the uncertainty that he had found there to be about whether the children’s return was anticipated in May or in June, to decide what he made of the 11 February email and I have not been persuaded that the conclusion he reached was not open to him.

The third date is an unspecified time in April. Judge Bellamy rejected this, first because Lord Brandon had found retention to be an event and not a process and there was, here, no single identifiable event, and secondly because what emerged from the evidence was a “feeling” that the mother had not conveyed to the father. On behalf of the father, it is submitted that the judge could have made a finding that “at the latest by [date] the mother had decided not to return the children” and this would have fulfilled the need to fix a date for Convention purposes. It is unnecessary to decide that point because the “feeling” that the mother had was not communicated to the father and I have already said that I do not consider that private decisions which are not communicated to the other parent can properly be classed as anticipatory retention. Counsel for the father seek to persuade us that taking the mother’s “feeling” together with her actions, there was sufficient to constitute a wrongful retention by this point. They rely upon the citizenship application, telling people she intended to remain, securing a job and getting the children into school for the following year. I am not persuaded that these features assist the father, not least because they preceded the “feeling” and, also, might easily have been reversed prior to the date due for the children’s return. Accordingly, to my mind, it has not been demonstrated that the judge’s rejection of the April date was wrong.

The judge having been entitled to reject the three earlier dates, if there was wrongful retention, it must have taken place at the end of the agreed absence, so on either 4 May 2016 or 28 June 2016. The judge selected the later date for reasons he explained clearly and that is not challenged. He then went on to determine that the children were habitually resident in this country by then. This finding is subject to appeal by the father. Given that I am not persuaded by the father’s other grounds of appeal, to which this is an alternative, I must now turn to his argument on this further point.

The essence of the argument is distilled into Ground 3 of the Grounds of Appeal which reads as follows:

Wrong in law in respect of his analysis of habitual residence.

Wrong in fact in respect of his analysis of habitual residence.

This ground is amplified in counsel’s skeleton argument and was expanded orally. A significant part of the focus is upon the Supreme Court’s decision in Re B. Mr Williams and Ms Renton say, in their written argument, that the Supreme Court has not given express guidance on how the issue of habitual residence should be evaluated in “temporary relocation” cases and that the guidance in Re B is particularly relevant. I agree with them that Re B is important here. However, I do not think that it stands entirely on its own. In my view, it should be read in conjunction with the decision of the Supreme Court in Re R, which I have already mentioned above (see §105). Re R was itself a decision about habitual residence in a temporary relocation case, albeit that the facts were not entirely straightforward (see §3 of the judgment of Lord Reed, with whom the rest of the court agreed). The judgment in it is therefore illuminating on the sorts of issues which concern us here and has, in my view, in no way been overtaken by the subsequent decision in Re B. The two cases were heard by the Supreme Court within the space of a year (Re R in May 2015 and Re B in December 2015) and three members of the court were common to both cases, including Lord Wilson, upon whose judgment in Re B the father particularly relies.

I do not propose to conduct an extensive review of the law on habitual residence here, having very recently looked at the position post-Re B in Re J (A Child) (Finland)(Habitual Residence) [2017] EWCA Civ 80 at §26 et seq. There is certainly no need for me to cite at length from Re B which has quickly become well known to practitioners in the international family law field, including Lord Wilson’s see-saw analogy at §45, which he used to explain how a child will not normally be without a habitual residence. It might be worth setting out §46 in full, however, as particular reliance is placed on it in the present case. It reads:

A number of passages from Re R merit specific mention, given its special relevance to the present habitual residence dispute. Before I go on to deal with them, however, I pause to note the general words of caution in Lord Reed’s §18, which we must obviously keep well in mind:

Starting at §12, Lord Reed summarised the proper approach to habitual residence. As part of this summary, he said:

The central issue in the appeal in Re R was whether the first instance court, which had been overturned on appeal, had erred in approaching habitual residence as if it depended upon there being a joint intention on the part of the parents to relocate permanently to Scotland. The Supreme Court found that it had indeed made that error, observing:

As the argument in Re R was similar to the argument pursued by the father in the present case, it is worth going on to quote a little more from Lord Reed’s judgment. He had to deal with the argument that, when the case was heard on appeal, the Extra Division of the Inner House of the Court of Session had concentrated on the Scottish position (whether the children needed to have spent longer in Scotland in order to become habitually resident there) and failed to address “the truly critical issue” of whether the children retained their habitual residence in France at the relevant time. Rather like in the present case, it was argued that the Extra Division had “erroneously focused only on the children’s circumstances in Scotland, and had left out of account the agreement between their parents as to the limited duration of the stay in Scotland, and their parents’ intentions” (§22 ibid).

Lord Reed said:

The complaint made on behalf of the father in the present appeal is that, although Judge Bellamy was referred to Re B, and although Lord Wilson’s three §46 “expectations” had been a central feature of the submissions made on the father’s behalf, he did not expressly set out the expectations or apply them in his determination. Nor, it is submitted, did he conduct a “comparative qualitative evaluation”, including rehearsing the evidence relevant to the retention of habitual residence in Australia, as opposed to the mother’s evidence of integration in the United Kingdom. The father complains that the sort of comparative exercise that Lord Wilson carried out in §§49 and 50 of Re B was absent. It should, it is argued, have formed part of the judgment and should have included consideration of the temporary nature of the move and the impact of the mother’s deceptiveness/evasiveness. As Mr Williams put it in oral submissions, the court is obliged to identify the context in which habitual residence is being determined in order to be able to give proper weight to the factors that are being assessed. So, for example, a child who goes to school in a new country following a permanent move there may integrate more quickly than a child who attends school on a temporary basis only. The factors upon which the father relied here pointed, it is said, towards the children having remained habitually resident in Australia, and the judge failed to weigh them in the balance. They included that the children were born and brought up in Australia and that the stay in England began as a 7 week holiday and was extended on an ad hoc basis. They also included ties that still bind the children to Australia, notably that the father and the paternal family remain in Australia and the family home is still there, albeit rented out, and that being here has limited the children’s contact with the father as he was able to visit only once during their stay here. In contrast, the family is not permanently housed here, the mother is not working and the children have been in school temporarily.

Judge Bellamy commenced his consideration of habitual residence, at §67, by referring to, and citing extensively from, another Re B case, Re B (A Minor)(Habitual Residence) [2016] EWHC 2174 (Fam), in which Hayden J set out a number of propositions of law drawn from the recent Supreme Court judgments on habitual residence, including the Supreme Court decision in Re B. It is important to note that the passage that Judge Bellamy quoted from Hayden J’s judgment included a reference to §§45 and 46 of Re B. Judge Bellamy then said, at §68, that he turned to the evidence with these propositions of law “firmly in mind”. That is, in my view, a promising start for his factual evaluation as it has not been demonstrated that the passage that he cited would have led him astray. I think the complaint is rather that he failed, in fact, to apply the principles there set out and/or to demonstrate that he did so by referring rather more specifically to passages from the Supreme Court authorities.

I am very anxious not to set an impossibly high standard for judges who have to determine where, as a matter of fact, a child is habitually resident. It must always be borne in mind (and I say more on this below) that the Hague Convention works best when a return can be ordered speedily; to achieve this it is important to keep the process simple and summary. Shorter judgments which do not cite extensively from the authorities may be expected as part of the attempt to meet this objective. And, as Lord Reed observed in the passage from Re R that I have quoted above, if the judge has applied the correct legal principles to the relevant facts, the resulting evaluation is not normally open to challenge unless the conclusion was not reasonably open to him.

Turning to the judge’s treatment of the facts here, it can be seen that he recognised at the start of his consideration (§69) that this was an agreed trip of finite duration. That was already clear from the earlier parts of his judgment, and as I have said, it is important to read the judgment as a whole. Looking back over it, there can be no doubt that the judge had well in mind the Australian connection. He set out at the outset of the judgment, as part of the background history, that the father was born in Australia and had lived there all his life and it can be seen that he was also aware that the children too had lived in Australia all their lives until brought to England by the mother in May 2015. At §6, the judge recorded the evidence about the involvement of the father in the children’s lives in Australia and the communications passing between the parents, quoted by the judge, underline the father’s wish to continue to be involved with the children. The judge specifically recorded (§6) the mother’s acceptance that the father loves the children. In §§11 and 12, he set out the position with regard to the mother’s and children’s belongings in Australia (in store there) and the family home (let out to tenants). In §70, he alluded to the father’s family in Australia. Taking all this material together, I do not accept that he omitted to give proper consideration, when determining the habitual residence issue, to the position in Australia as well as to the position in England. If there were any residual doubt about this, it would be dispelled in any event by the judge’s §80, which I quote fully below, in which he referred specifically to their connection with Australia (found by him to be “minimal” by 28 June 2016) and to their roots in Australia (“effectively …pulled up”).

There was considerable evidence about the children settling in the UK which can be found set out from §71 of the judgment onwards; I will not recite the material here as the judgment is readily accessible. At §78, the judge referred to the father’s acceptance that the children appeared happy and settled when he visited them in August 2016; although this was after the relevant date for habitual residence, it was not irrelevant. Given all of this material, the judge was, in my view, entitled to find, as he did at §80, that by 28 June 2016, the children were sufficiently integrated in a social and family environment in England to be habitually resident here. That paragraph is worth quoting in full because it shows, albeit in brief shorthand, that the judge was aware of the need to consider the situation in both countries, the children’s ongoing relationship with the father, and the potential impact of the mother’s state of mind upon the children’s integration. It reads:

All in all, it has not been demonstrated to me that the judge erred in the legal principles that he applied or in relation to the factors that were to be taken into account in making his finding of fact. I would not, in the circumstances, disturb his finding that the children were habitually resident here by 28 June 2016. The mother’s retention of the children here on that date did not, therefore, give rise to a remedy for the father under the 1980 Hague Convention.

It follows that I would dismiss the father’s appeal.

Before I leave the case, however, I would like to say a little more about the need to ensure that Hague Convention cases are kept under control. I say this particularly in the present case, in view of my anxieties that efforts to find instances of anticipatory retention might complicate and lengthen Hague proceedings.

From time to time, it is necessary to remind ourselves that 1980 Hague Convention cases are meant to be dealt with summarily. Time is absolutely of the essence in these cases. A speedy return will normally be a good deal easier for all concerned than a protracted affair that only comes to a conclusion when the children have been in the new country for a considerable period of time and have started to lose touch with their former lives. The hearing in this case lasted for 3 days. A number of years ago, that would have been virtually unheard of. My recollection of trying such cases as a Family Division judge is that oral evidence was infrequent and cases tended to be concluded within half a day to a day. All counsel involved in this case are experienced in Hague cases and we were told by them, in argument, that cases have gradually got longer, particularly since the changes in the approach to habitual residence, that oral evidence is given in a significant proportion of contested cases, and that 3 day trials are not commonplace but do occur. It is not difficult to see that the consequence of this lengthening of Hague hearings must be delay. The deeper the court is prepared to go into the evidence, the more evidence the parties will want to produce. This is likely to extend the time required to assemble the material needed for the contested hearing. Arrangements for witnesses to give evidence, by attending in person or by electronic means, may take time to make. And it will be more and more difficult to accommodate hearings speedily as the court lists become burdened with hearings lasting several days and involving a quantity of detail that it may take the judge a significant amount of time to render down into a judgment.

Article 11 of the 1980 Hague Convention requires the judicial or administrative authorities of Contracting States to act expeditiously in proceedings for the return of children and, if a decision has not been reached within six weeks from the date of the commencement of the proceedings, there is a right to request a statement of the reasons for the delay. Article 11(3) of Brussels IIA similarly requires a court to which a return application is made to act expeditiously and provides that, unless exceptional circumstances make this impossible, the court must issue its judgment no later than six weeks after the application is lodged. Lengthening hearings can only impede the efforts of the courts to meet these requirements.

I would suggest, therefore, that the time has come for judges dealing with 1980 Hague applications to review their practices to ensure that they are adopting an appropriately robust approach to them. Lord Hope captured the point in Re D (a child) [2006] UKHL 51, at §5. That was a case where long delays had occurred in an attempt to answer the question whether the father had rights of custody which were breached by the mother’s removal of the child to England from Romania, and the passage of time had considerably complicated the position in relation to the child. Lord Hope’s remarks were made in that context but what he said is of wider relevance as well:

He continued at §7:

Waite J, as he then was, made the same point very clearly in Re B (Minors)(Abduction)(No 2) [1993] 1 FLR 993 at 998, saying:

As Thorpe LJ observed of the Convention in Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478:

The respected textbook, International Movement of Children by Lowe, Everall and Nicholls, 2^nd edition 2016, contains a useful description of the procedure at the final hearing in a Hague abduction case which underlines, with support from the authorities, the summary nature of the process and the limited role for oral evidence, see page 774 et seq.

Looking beyond our domestic jurisprudence, although I do not have a great deal of material to indicate how other countries currently conduct final hearings, it is interesting to note that in the New Zealand case of RCL v APBL (supra), the New Zealand High Court, hearing an appeal from the Family Court, commented that it was free to substitute its own views on questions of fact and evaluation if satisfied the Family Court decision was wrong “because, as is usually the case, there was no cross-examination of the parties on their affidavits” (§38). The Family Court judge and the appellate judge both determined the disputed issues of fact on the basis of the written material available.

Clearly, the quantity and nature of the evidential material required to reach a proper determination of the application will depend on the individual case, as will the format of the final hearing, including the extent to which oral evidence is permitted. It is particularly important, therefore, that the directions hearing(s) preceding the trial be used to identify the real issues in the case, so that the judge can give firm and focused case management directions, including as to the form that the hearing will take.

In the light of the joint view of Lady Justice Sharp and Lady Justice Thirlwall, this matter will be returning to a judge of the Family Division for rehearing. It seems to me that in the circumstances, I should say a little more about my thoughts on the middle ground to which I referred in §133 above. I propose to do so extremely briefly because it seems to me that the most important thing now is for the parties to be informed of our decision without further delay, and also because I fear that I am, once more, inclined towards a view which puts me in the minority.

In short, my present inclination is that, whatever the nature of the matters which are said to constitute anticipatory retention, they will not be found to be sufficient whilst they have neither been communicated to the other parent nor reached his attention by other means. What happened in this case in November 2015 comes into that category, not having come to the attention of the father until after he commenced the Hague proceedings on a different basis.

I adhere to my view that a private and uncommunicated resolution not to return the children is insufficient (§131 above). If, in contrast, the parent with the children tells the other parent of the decision, it will depend on all the circumstances of the individual case whether this can amount to anticipatory retention. If so, I would expect the date of the retention to be the date on which the communication occurs, but only time will tell whether I am right about that.

I can foresee that cases could arise in which, rather than relying upon notification in words, the left behind parent seeks to rely upon conduct on the part of the parent with the children which has come to his attention. The American case of Zuker v Andrews (above) illustrates this, as reliance was there placed on conduct by the mother which came to the knowledge of the father. I have no difficulty with this in principle, but again, whether anticipatory retention is made out (and if so, upon what date) will depend upon all of the facts. There will need to be a review of the conduct in question and a careful finding as to the intention of the parent with the children. As I said at §137, I find it very difficult (to put it conservatively) to contemplate there being anticipatory retention unless the parent actually intends to retain the children.

In many ways, the decision as to where the boundaries of anticipatory retention should be set is a policy decision, there being little in the wording of the Convention itself or in the decided cases to fix the parameters. The reason that I would be inclined to confine the concept by a requirement of communication is because I hope that this will avoid far-reaching trawls through all conceivable aspects of the lives and correspondence of the parents and children, both in pre-trial preparation and in evidence in court. There is support in quite a number of the decided cases for rejecting uncommunicated decisions/acts as insufficient and, if communication/knowledge is insisted upon, it has at least a prospect of improving certainty and focus – the court will be looking for something known to the applicant, which he or she is able to put in evidence from the very start of the proceedings. There may be other evidential matters that have to be explored as the case develops but this at least rules out the possibility that it begins as a voyage of exploration, embarked upon in the hope that an early retention date will come to light as material is disclosed by the other side.

We have had the advantage of reading in draft, the judgment of Lady Justice Black. We respectfully agree with her conclusion that wrongful retention can occur before the previously agreed date of return and we adopt her description of anticipatory retention. We also agree with her analysis of the law, save that we consider it is not necessary to a finding of anticipatory retention that the retaining parent should have communicated to the other parent either an intention to retain or any acts he or she has taken in furtherance of that intention. Very often that will be the case, but in our view, it is not essential. We agree with Lady Justice Black’s view expressed at paragraph 133 of her judgment that there may be cases at either end of the spectrum. Ultimately however, whether anticipatory retention has occurred is a question of fact to be resolved by reference to the evidence of the circumstances. We regard this as a practical question, not a theoretical one, to be judged by reference to the facts of the individual case.

The judge considered and rejected a number of dates upon which it was argued on behalf of the father that anticipatory retention had occurred. We are principally concerned with his reasoning in respect of the first of three options, which was 4 November 2015. Given the importance of the issue to the eventual outcome of the appeal, we set out in full the section of the judgment that deals with the 4 November date.

In her skeleton argument, Miss Renton says that,

I referred earlier to the letter written by the psychologist who had worked with the parents in Australia, Dr M. The following passage from his letter is relevant on this issue. He wrote,

On a fair reading of this section of the judgment, it seems to us that the judge really addressed two issues. First, whether what the mother said through her solicitors about the position of the children was necessary for the purpose of the Home Office’s decision (and therefore whether British Citizenship had been obtained because the Home Office were actively misled by what she said); and secondly, what if anything could be deduced from the fact that the application had been made, in particular without the father’s knowledge. As we read what he said, the judge concluded that since the information was unnecessary (because the issue was whether the children met the statutory criteria, and was not one of discretion) it could not be said that the Home Office had been misled into granting British Citizenship by false or misleading information: see para 55.

As to the second issue, the judge found the children’s position needed to be regularised because they were staying in the United Kingdom longer than 6 months, the father had nothing to contribute to the process, and therefore the fact of the application was not supportive of a decision on wrongful retention having been made on (or by) that date.

However the critical issue, for the purposes of the judge’s decision on this aspect of the case, was not whether the mother was required to give certain information to the Home Office, but whether what was said by her to the Home Office in her solicitor’s letter was true. The judge failed to consider or address that key issue when considering whether the “circumstances surrounding the children's applications for British citizenship” amounted to “anticipatory retention”. Having regard to the importance of the point, in our view, he should have done so. In particular, the judge overlooked the fact that the solicitor’s letter together with the other documents provided in support, was contemporaneous evidence, which prima facie, directly contradicted the case being made for the mother.

The solicitor’s letter contained an account of the arrival of the family on 5^th May, comprehensive criticisms of the father and the assertion that by the time the mother left Australia with the children:

The letter made no mention of the parents’ agreement to a one-year stay and enclosed three further statements dated September 2015, which the judge dealt with in the context of habitual residence at paras 74, 75 and 76 of his judgment. Like the solicitor’s letter, these statements (from the mother’s aunt, dated 21^st September 2015, a letter from a villager dated 24^th September 2015 and another letter dated 28^th September 2015 from a neighbour who had known the mother since she was five years old) contained no hint that the children would ever be going back to Australia. In each one the writer stresses that the children settled in well from the start, were developing well in a stable and loving environment and are very much at home in their mother’s home village.

At trial and before us it was argued on behalf of the mother that the letter was written in the terms to which we have referred, because of a mistaken understanding by the solicitors that the Home Secretary would be exercising a discretion as to whether or not to grant citizenship. However, this was neither here nor there. Assuming that the contents of the letter were true, and no one has suggested that they were not, the letter is an important contemporaneous statement of the mother’s position, which, in combination with the supporting documents, the application for British citizenship, and the failure to inform the father provides powerful evidence that as of 4 November 2015 and probably much earlier, the mother had no intention of returning the children to Australia. Her conduct in making the application, and in obtaining and submitting the supporting documents is further prima facie evidence of her intention to retain the children and is itself prima facie evidence of retention. In this case therefore, the question raised by Lady Justice Black as to whether intention on its own is sufficient to amount to retention does not arise on the facts.

Finally on this point, we should say that we do not consider the judge’s failure properly to address this evidence, or its implications, is made good by what he said elsewhere in his judgment. It is true as Lady Justice Black points out, that at para 34 of the judgment, the judge said: “It is unclear precisely when it was that the mother decided that she and the children would not return to Australia. The mother was unable to give a date. It was, she said a decision that had been made “over time”. By April she had “felt we wouldn’t be going back”. We respectfully disagree with Lady Justice Black however that these observations, in the section of the judgment headed “background history”, may properly be read as part of the judge’s reasons for rejecting 4 November 2015, as the date on which anticipatory retention occurred, having regard to the structure of the judgment itself, and the reasons given by the judge on the issue, which we have set out in full.

Much was made in argument on behalf of the mother of the importance of the courts’ recognising that people can change their minds. We regard that as somewhat theoretical, particularly in this case. Where a parent decides to retain children and then changes his or her mind, the children are returned and there is no difficulty. It is where there is no change of mind that the difficulty arises.

Finally, we draw attention to one further aspect of the judge’s reasoning with which we disagree. At paragraph 62, the judge concluded that April 2016 was not an option for anticipatory breach for two reasons: “April 2016 is not an alternative at all in that the mother does not refer to a specific occasion in April when she “felt we would not be going back” but rather she says that it was “by April” she felt we would not be going back”. The judge repeated his earlier observation that it is settled law that wrongful retention is an event and not a process. He was there referring to the opinion of Lord Brandon in Re H, dealt with by Lady Justice Black at paras 30 to 36 above. The judge went on to say “a finding that there was a wrongful retention on some unspecified date in April is … too imprecise.” This seems to us, to be wrong both as a matter of law and in logic. In our view, if an event occurs in April, but it cannot be attached to a particular date, it does not follow that the event did not occur, or did not occur in April. Had the evidence supported such a conclusion, a finding that retention had occurred by the end of April would have been perfectly permissible.

Our conclusions are these. The judge’s failure to address or grapple with the evidence when considering whether anticipatory retention had occurred on/by 4 November 2015 means that his conclusion that it had not done so cannot rationally be supported. It follows that we would allow this appeal. All members of the court have decided that anticipatory retention can occur. We would accordingly direct that the case be sent back to the Family Division of the High Court, for a rehearing before a different judge. The hearing should be directed first to the question “did retention occur before 26^th June 2016?” If the answer to that question is no, then that is an end of the matter in the light of the judge’s conclusion that by that date the children were habitually resident in the United Kingdom, a conclusion with which we would not interfere for the reasons given by Lady Justice Black. If the judge identifies an earlier date, he or she will then have to determine where the children were habitually resident at the relevant time and go on to consider the issues raised by Articles 3, 4 and (if applicable) Article 13.

We add this. These are not easy cases. The fact that habitual residence may change even at the very early stages of an agreed period of absence from the home country may lead to injustice, as viewed from the perspective of the ‘left behind’ parent. The Hague Convention, effective in providing a swift remedy when children are wrongfully removed or retained after a short absence, does not easily resolve cases where children are removed from their country of habitual residence for prolonged periods by agreement. In the modern world, agreements between parents that one or other or both of them will move across the world with their children for a period of months, a year, or more are increasingly common. It seems to us that parents (particularly estranged parents) who are considering such an arrangement must understand that if one of them should change their mind, the children may remain permanently in the new country, against the wishes of the other parent either because the defence of settlement under Article 12 of the Convention will apply or because habitual residence may change during the currency of the agreement between the parties thereby ousting the Convention altogether. Legal advisers would be bound to counsel against such agreements and arrangements. Co-operation between parents, particularly where trust is already fragile, will diminish. This is not in the interests of children or their parents.