C (Children)

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 authorityand 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:

“34.

It is unclear precisely when it was that the mother decided that she and the children would not return to Australia. The mother was pressed hard by Ms Renton, for the father, to indicate the point at which she had decided that she and the children would remain in England indefinitely. 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’.”

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:

“…HHJ Bellamy was:-

(a)

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

In particular: (i) HHJ Bellamy did not take account of the temporary nature of the stay in England and Wales; (ii) did not consider any of the factors set out in Re B (A child)(Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 2 WLR 557, by Lord Wilson at [46] and (iii) did not consider the impact of M’s deceptiveness/evasiveness in relation to F as regards the degree to which M, and therefore the children, were integrated in England and Wales.

(b)

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

In particular, HHJ Bellamy undertook a one sided analysis of habitual residence; none of F’s arguments in respect of habitual residence were considered or weighed into the balance, probably as a result of HHJ Bellamy having wrongfully thought that F accepted that if the date of wrongful retention was 28 June 2016 the children were habitually resident in England and Wales by this date.”

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, itshould 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:

“46.

One of the well-judged submissions of Mr Tyler QC on behalf of the respondent is that, were it minded to remove any gloss from the domestic concept of habitual residence (such as, I interpolate, Lord Brandon’s third preliminary point in the J case), the court should strive not to introduce others. A gloss is a purported sub-rule which distorts application of the rule. The identification of a child’s habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him:

(a)

the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

(b)

the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

(c)

were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.”

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:

“18.

Finally, it is relevant to note the limited function of an appellate court in relation to a lower court's finding as to habitual residence. Where the lower court has applied the correct legal principles to the relevant facts, its evaluation is not generally open to challenge unless the conclusion which it reached was not one which was reasonably open to it.”

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

“16.

… It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.”

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:

“21.

In determining the case on this basis, the Lord Ordinary failed to apply the guidance given in the authorities. As I have explained, parental intentions in relation to residence in the country in question are a relevant factor, but they are not the only relevant factor. The absence of a joint parental intention to live permanently in the country in question is by no means decisive. Nor, contrary to counsel's submission, is an intention to live in a country for a limited period inconsistent with becoming habitually resident there. As was explained in A v A, the important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent. The Lord Ordinary's exclusive focus on the latter question led to his failing to consider in his judgment the abundant evidence relating to the stability of the mother's and the children's lives in Scotland, and their integration into their social and family environment there.”

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:

“23.

I do not find that submission persuasive. The Extra Division proceeded on the basis that the stay in Scotland was originally intended to be for the 12 months' maternity leave, that much being uncontroversial. They therefore assumed, in the father's favour, that the stay in Scotland was originally intended to be of limited duration. Their remark that the real issue was whether there was a need for a longer period than four months in Scotland, before it could be held that the children's habitual residence had changed, followed immediately upon their statement:

"If the salient facts of the present case are approached in accordance with the guidance summarised earlier, the key finding of the Lord Ordinary is that the children came to live in Scotland."

In other words, following the children's move with their mother to Scotland, that was where they lived, albeit for what was intended to be a period of 12 months. Their life there had the necessary quality of stability. For the time being, their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on, the more deeply integrated they had become into their environment in Scotland. In that context, the question the Extra Division asked themselves did not indicate any error of approach. Nor did their answer:

"For our part, in the whole circumstances we would view four months as sufficient."”

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:

“80.

I am satisfied that by 28^th June 2016 the children had obtained a sufficient degree of integration in a social and family environment in England for them to have acquired habitual residence here. I am satisfied that the mother, too, had by then obtained habitual residence in England. The children's life in England is stable and secure. I am satisfied that as the months went by the mother gradually came to the conclusion that she and the children should remain in England. She had reached that conclusion by around April though it was not communicated to the father. The reality is that apart from their intermittent contact with their father by Skype, by 28^th June 2016 at the latest (and arguably much sooner) the children's connection with Australia was minimal. Their roots in Australia had effectively been pulled up. They had put down new roots in England.”

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:

“The lesson of this case is that every effort must be made to avoid such delays. If there is a dispute as to whether the removal was wrongful it should be dealt with summarily. A balance must, of course, be struck between acting on too little information and the search for too much. A court cannot make a finding that the child’s removal was wrongful unless it is provided with a basis for doing so. But if it is to deal with the case summarily the court must not seek perfection. It has to do the best it can on the information that has been made available, as Butler-Sloss LJ indicated in C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, 658A.”

He continued at §7:

“Speed is of the essence if the child is to be returned promptly to [the state of habitual residence]. The court must take this into account when considering whether enough information as to whether the removal was wrongful is available, and whether the information that it has is reliable.”

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:

“Hague Convention proceedings are, by their nature, summary. High priority is accorded to their urgent hearing in the Family Division. Human nature assures, unfortunately, that there will never be any shortage of Convention cases coming forward for disposal. If they are all to be dealt with fairly and expeditiously, there must be an element of peremptoriness in the court’s approach to their hearing. Time does not allow for more than a quick impression gained on a panoramic view of the evidence.”

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

“It cannot be too strongly emphasised that this is intended to be a hot pursuit remedy and if the courts permit it to linger into anything else they aid the creation of unnecessary litigation issues.”

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.

“Wrongful retention - discussion

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:

“she no longer felt safe there and ultimately, she taking advice from such as Dr Doug Maclean [a psychologist who had worked with the parents as their relationship broke down] was effectively forced not to return to Australia in order to safeguard herself and her children. Mrs C was advised not to return to Australia…”

The letter ended by stating that:

“it cannot be in doubt that the children’s centre of life is, and will be, in the UK…”

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.