P and O (Child Abduction: Anticipatory Breach)

I am concerned with two children, P aged 4 and O aged 2. Their parents are JC (‘the mother’) and BC (‘the father’). The children were born in Australia. On 4^th May 2015, with the father’s consent, the mother brought the children to England. It had originally been intended that the children and their mother would remain in England for eight weeks. The father agreed to the stay being extended. At the end of the agreed extension the mother and the children remained in England. On 27^th July 2016 the father began proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) seeking an order for the summary return of the children to Australia. The mother opposes his application.

The mother is a health care professional. She is aged 37. She was born in Canada. Her family moved to England when she was aged 4. She spent her school years living in Devon.

The father is a self-employed landscaper. He is aged almost 37. He was born in Australia and has lived in Australia all his life.

In 2008 the mother moved to live and work in Australia. She met the father in 2009. Their relationship began in March 2010. They were married in November 2010. The mother found work. She had periods of maternity leave before and after the birth of P and O.

In November 2014 the mother obtained Australian citizenship. It is clear that by then the parents’ relationship was in difficulties. They separated on 14^th December 2014. The father agreed to move out of the family home. Without consulting the mother, the father moved back into the house for a few days over the Christmas period. He stayed in the garage. He left again after Christmas.

In evidence the father said that he had been fully involved in caring for the children. Child care had been shared, ‘absolutely shared’. Although the mother did not accept that the children’s care had been ‘absolutely shared’ she did accept that the father loves the children and that he had had regular contact with them in Australia after their separation.

The mother says that during their relationship she was the victim of domestic abuse. The father denies that he abused her. They sought counselling from a psychologist. They also attended mediation with a view to trying to agree the arrangements for the children.

The mother was on maternity leave at the time of the separation. She told the father that she wanted to make a trip to England before returning to work. She told him that she was prepared to make an application to the court for permission for the temporary removal of the children. The father acknowledges that the mother was homesick. He consulted a solicitor. Initially he said that he wanted the mother to provide financial security in the form of a bond. The mother could not afford to do so. The father relented. He agreed to the mother and the children travelling to England for an eight week visit.

The mother’s removal of the children from Australia was with the consent of the father. It is accepted that it was not a wrongful removal within the meaning of the Convention.

The mother left Australia on 4^th May 2015 and arrived in England the next day. She and the children went to live with maternal grandmother at her home in Devon. They have lived there continuously since that date.

When she left Australia the mother left behind many of the children’s clothes and toys and other belongings as well as many of her own clothes. She has since arranged for them to be packed up and put into store.

The unit where the family lived is owned by the parents in their joint names. Since the mother left Australia the property has been let out to tenants. The father accepts that if the mother and the children were to return to Australia steps would need to be taken to evict the tenants. He agrees that the mother and the children can remain in England for a couple of months whilst possession is obtained. There is no evidence before the court about the steps the mother would need to take to obtain possession and how long those steps would take.

Although since their separation the relationship between the parents has been tense, they have remained in contact by e-mail. On 17^th June 2015 the father sent an e-mail to the mother, apparently in response to the mother having sent some photographs of the children. It is a significant e-mail. The father wrote:

In his evidence the father accepted that that e-mail reads like an invitation to the mother to remain in England for as long as she wished. He agreed that the mother could reasonably have construed it as such. He said that he had written in this way in order to open up communication with the mother.

The father agreed to give the mother time to think about his e-mail. On 23^rd June she replied in these terms:

Initially the father indicated that he was prepared to agree to an extension of one month. However, on 28^th June he sent another e-mail in which he wrote,

It is unclear from the wording of that e-mail whether the year was to run from the date of the mother’s departure from Australia or from the date of the e-mail. The father himself seemed uncertain about when the 12 month period began. In an e-mail sent on 5^th July 2015 he asked a number of questions including:

Notwithstanding the mother’s failure to answer the father’s questions, in an e-mail sent on 4^th November the father appeared to reaffirm his acceptance of the children remaining in England long term. He said,

The father says that his reference to moving to live in New Zealand was just a ‘fleeting comment’. It was not a serious indication. That said, the father disclosed that he is now in a relationship with a New Zealander. They are living together. His partner is expecting their first child in 2017.

Following receipt of the father’s e-mail indication that he agreed to the children remaining in England for a year, the mother gave notice to terminate her employment in Australia. In September she began looking for work in England. She attended her first interview in November. The father agreed that it had been reasonable for her to look for work. Although he was paying child maintenance of A$121 per month, he accepted that the mother needs to work to support herself and the children.

In September the mother enrolled P at a local pre-school. The father accepts that given that the children were to remain in England for a year it was appropriate for her to have done so.

The children had entered England on a visitor’s visa. The visa remained valid for six months. Given that the father had agreed to the mother and the children remaining in England for twelve months steps needed to be taken to ensure that the children remained in the UK legally. The father knew that that was the position. What he did not know, because the mother did not tell him, was that having taken legal advice she proposed to apply for British citizenship for the children. As a result, the father remained completely unaware that that application had been made. The mother was open with the authorities concerning the father’s identity and his whereabouts.

The mother has produced a copy of a letter written by her solicitors in support of the children’s application for citizenship. The letter contains the following passages:

Along with that letter the solicitor also submitted five additional letters of support. One of the letters was written by the psychologist who had provided counselling for the parents whilst they were in Australia. He ended his letter by saying that in his opinion, it is in the children’s best interests that they be allowed to stay with their mother while she is resident in the UK.

In January the mother applied for a school place for P. She did not consult the father. Indeed, she did not even inform the father.

On 3^rd February 2016 the children were granted British citizenship.

The father continued to press the mother to indicate the date when she and the children would be returning to Australia. On 11^th February 2016 she e-mailed the father saying,

On 14^th February the father wrote:

Two days later the father sent another e-mail, his frustration very evident. He wrote,

In March the father instructed his solicitor to write to the mother asking whether she planned to return the children to Australia and if so when. In his letter the solicitor said, ‘My client believes that you may now be planning to stay indefinitely in the UK…’

The mother did not reply until June. She said,

On 6^th April the father tried to contact the mother by telephone. He left a message on her answerphone. The mother produces a transcript. The transcript is not agreed as such though the father accepts that he called the mother and left a message. According to the transcript, the father said,

The father says that he was very frustrated at the mother’s failure to answer his questions. He also said that had the mother replied to his questions by saying that she did not intend to return to Australia then he did not know what he would have done. The father saw his solicitor again in April.

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 Miss 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’.

The father has had some contact with the children by Skype. This has occurred on average around once a month. The children are 10,000 miles away. Seeing and speaking to them but not being able to hold them and cuddle gives rise to strong emotions. It is clear he has found it difficult to cope with this. He has visited the children in England in August. The father agrees that when he met the mother in August he did not raise with her the issue of her return to Australia.

So far as is material, Article 3 of the Convention provides that:

Article 4 provides that,

So far as is material, Article 12 provides that,

In this case it is conceded by the mother that if the Convention applies then the children have been wrongfully retained in England. What is not agreed is the date upon which the children were in fact retained. Five possible dates have been canvassed. First, the 4^th November 2015 which appears to be the date when the mother’s solicitor submitted the children’s applications for British citizenship. Second, the 11^th February 2016, being the date when the mother informed the father that she would not be returning the children to Australia in May. Third, an unspecified date in April. This relates to the mother’s evidence that by April she ‘felt we would not be going back’. Fourth, the 4^th May 2016, being one year from the date when she and the children left Australia. Fifth, the 28^th June 2016, being one year from the date when the father indicated to the mother that he agreed to her remaining in England for twelve months.

The father submits that the appropriate date is either the first, second or the third of these alternatives. The mother submits that it is either the fourth or the fifth alternative. The significance of the point is clear. It is the mother’s case that by the time the supposed ‘wrongful retention’ occurred the children were habitually resident in the UK and the Convention is not, therefore, engaged. It is the father’s case that the children have not become habitually resident in the UK. The length of the period during which the children were resident in the UK prior to date of the wrongful retention is relevant to (though not determinative of) the issue of whether the children had, in fact, become habitually resident in the UK.

In order for the father to be able to satisfy the court that one of the first three alternative dates is the relevant date, he must first satisfy the court that it is possible as a matter of law for an anticipatory breach of an agreement to amount to a wrongful retention for the purposes of Article 12 of the Convention. If he succeeds on that point he must go on to satisfy the court that in the circumstances of this case there has in fact been an anticipatory breach on one of those three dates.

In her submissions, Miss Renton undertook a review of the authorities. She began with Re H; Re S (Abduction: Custody Rights [1991] 2 FLR 262. Lord Brandon there makes the point that wrongful removal and wrongful retention are mutually exclusive concepts and that retention ‘is not a continuing state of affairs, but an event occurring on a specific occasion’ (p.272). That point is not in dispute. It would tend to suggest that in this case the third alternative (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’. I return to that point later.

The next case relied upon is the Court of Appeal decision in Re AZ (A Minor)(Abduction: Acquiescence) [1993] 1 FLR 682. In his judgment, Sir Michael Kerr considered findings made by the trial judge of wrongful retention at two separate points in time. At pages 688 to 689, he said this:-

Twelve months later, in Re S (Minors)(Child Abduction: Wrongful Retention) [1994] 1 FLR 82, Wall J (as he then was) took a slightly different view. Having initially been doubtful that an anticipatory breach could in law be a wrongful retention, he said this at page 91E and 93:

The first of the three possible dates of wrongful retention in this case appear to relate to an act and not a statement, that act being the submission of the children’s application for British citizenship. Miss Renton was very clear that it is not, in fact, the act itself that is relied upon by the father but what she describes as the misleading statements made by the mother’s solicitor to the Home Office when submitting the children’s applications and the mother’s notable failure to consult with the father concerning her intention to submit those applications. Notwithstanding that explanation, Miss Renton relies upon a passage from the judgment of Lord Hughes in Re A (Jurisdiction: Return of Child) [2014] 1 FLR 111, in which he said (§78):

The ‘question’ to which Lord Hughes refers at the beginning of that passage is a wholly different question to that with which I am concerned. That ‘question’ is set out in the judgment of Baroness Hale at §§ 39-40. It is unnecessary for me to set it out. It has no relevance to the issues with which I am concerned. It did not relate to an issue that fell for determination in that case. No doubt it is for that reason that this passage is couched in guarded terms (‘it may well be that’). Miss Renton accepts that this passage of Lord Hughes’ judgment was obiter. However, leaving those points to one side, this passage raises an interesting question about whether the submission of an application for citizenship in circumstances such as those with which I am concerned can be construed as a unilateral act amounting to a wrongful retention in Convention terms.

This point was further considered by the Court of Appeal in Re H (Abduction: Jurisdiction) [2015] 1 FLR 1132. Referring directly to the judgment of Lord Hughes to which I have just referred, Black LJ said this (§30):

From these authorities Miss Renton deduces that there is a legal principle of ‘anticipatory breach’ amounting to wrongful retention and that on the facts of this case there has been an anticipatory breach either on 4^th November 2015 or on 11^th February 2016 or on an unspecified date in April 2016.

For the mother, Mr Gration makes the point that all of the authorities to which I have referred have been comprehensively reviewed recently by Roberts J in BP v DP [2016] EWHC 633 (Fam). Roberts J was also taken to decisions of the United States Court of Appeals for the First Circuit and of the Court of Appeal of New Zealand (see her discussion of those cases at §§64 – 68). In that case it was submitted on behalf of the father that the concept of anticipatory breach ‘is mere sophistry’. Roberts J agreed. She said (§72):

I am told that the decision of Roberts J is not being appealed. For my part I am persuaded by her analysis of the relevant authorities that her ultimate conclusion is correct. However, lest I am wrong on that point I nonetheless propose to consider the first three dates contended for by the father on the basis that the circumstances could give rise to an anticipatory breach.

It appears that the children’s applications for British citizenship were submitted on 4^th November 2015. Certificates of registration were granted on 3^rd February 2016. The certificates confirm that registration was made pursuant to s.3(2) of the British Nationality Act 1981.

Section 3 is headed ‘Acquisition by registration: minors’. So far as is material it provides that:

It is clear from the wording of s.3(2) that registration of a child as a British citizen under this section is not a matter for the exercise of discretion but is a matter of a child’s entitlement so long as the criteria in s.3(3) are met. The solicitor’s letter to the Home Office dated 4^th November sets out information clearly designed to persuade and assumes that the person making the decision will be exercising a discretion. As the Home Office was not required to exercise a discretion it follows that any misleading or inaccurate information set out in that letter cannot have had any bearing on the decision of the Home Office to approve the children’s applications.

Complaint is made that the Home Office failed to consult the father before determining the children’s applications. Given that the children were entitled to citizenship if they met the prescribed criteria, it is not clear to me that the father would have had any role to play in the determination of the children’s applications unless it were to try to persuade the Home Office that the conditions set out in s.3(3) were not met. On the basis of the information before me the fact that those criteria were in fact met appears to be clearly established.

In her skeleton argument, Miss Renton says that,

I do accept that there is some merit in the criticism of the mother that she did not consult the father before submitting the children’s applications and that she failed thereafter to inform the father either that the applications had been made or that they had been granted. It was not until these proceedings were in train that the father finally found out about the applications. When asked what she thought the father’s response would have been had he been asked for his views before submitting the applications, the mother said she thought he would have objected. Her failure to tell the father of her intention to make those applications coupled with her failure to respond to the father’s repeated request to be informed of the date when the children would be returned to Australia give some support for Miss Renton’s description of the mother as ‘evasive’.

However, it was noticeable that for most of the time when the father was giving his evidence the mother kept her head down so that she could not make eye contact with him. It appeared as if she were withdrawing into herself. When her turn came, she clearly found the process of giving evidence extremely difficult. At several points she struggled to hold back her tears. When asked why she had not responded to the father’s e-mails she replied that she felt that whatever she had said would not have been accepted by the father and would simply have led to more e-mails or, as she put it, to more harassment. She said, ‘he’s the one who calls all the shots…he hasn’t stopped harassing me…if I had said anything it would have been wrong…’

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,

Put in that context, the force of the criticism of the mother’s performance in court as evasive is much diminished. I accept that what the father construed as evasiveness may well have been the result of genuine fear of further harassment. If there is a ‘binding legal principle in relation to “anticipatory breach”’, I do not accept that the circumstances surrounding the children’s applications for British citizenship amount to such a breach. As the father well-knew, the children had entered the UK on six-month visitors’ visas. To enable them to stay for the year to which the father had agreed, some step had to be taken to enable them lawfully to remain in the UK beyond 5^th November. I do not accept that it can properly be said that the mother ‘wrongfully retained’ the children from 5^th November 2015.

In passing, it is also appropriate to note that the fact that these children have been registered as British citizens does not affect their status as Australian citizens. The website of the Australian Government’s Department of Immigration and Border Protection, addressing the issue of dual citizenship, advises that,

The next date contended for as an anticipatory breach giving rise to wrongful retention is 11^th February 2016. That was the day on which the mother sent an e-mail to the father saying, ‘Short term I will not be returning in May’. I have already noted the uncertainty in the minds of both parents about whether the 12 month stay consented to by the father ran from 4th May 2015 or from 28^th June 2015. Miss Renton invites me to conclude that by these words the mother must be taken as indicating that she intends to remain in England with the children indefinitely. Given the uncertainty to which I have just referred, such an interpretation of the mother’s words would not, in my judgment, be justified. If there is a ‘binding legal principle in relation to “anticipatory breach”’, I do not accept that the mother’s e-mail of 11^th February gives rise to such a breach.

The third date contended for by the father is April 2016. He relies on the mother’s oral evidence that ‘By April I felt we wouldn’t be going back’. In contending that that amounts to an anticipatory breach the father faces two problems. First, as I noted earlier, it is settled law that wrongful retention is an event and not a process. A finding that there was a wrongful retention on some unspecified date in April 2016 is, in my judgment, too imprecise. Second, the evidence that by April the mother had come to the conclusion that she would not be going back is evidence that did not emerge until the mother was being cross-examined by Miss Renton. It was a ‘feeling’ that the mother had not conveyed to the father at the time. Once again I come to the conclusion that if there is a ‘binding legal principle in relation to “anticipatory breach”’, the evidence does not support a finding that such a breach occurred in or (as the mother put it) ‘by’ April 2016.

Having discounted the three dates proposed by the father as being the date when wrongful retention occurred, I turn now to consider the final two dates – 4^th May 2016 or 28^th June 2016. On 28^th June 2015 the father had sent an e-mail to the mother saying, ‘I am in agreement that u n the children stay in the UK for a year’. It is clear from the subsequent e-mails to which I have referred that the father himself was uncertain whether the extension had been until 4^th May 2016 or 28^th June 2016. So, too, was the mother.

The father did not initiate these Hague proceedings until 27^th July 2016. Had he been of the firm view that the year expired on 4^th May then he could have issued these proceedings two months earlier. He didn’t. It is clear from his email of 16^th February that he was aware of the Convention. In a letter from the Australian Attorney General’s Department to the International Child Abduction and Contact Unit in London (‘ICACU’), the Assistant Director of the Australian Central Authority stated in terms that, ‘The application provides that the subject children were wrongfully retained in the United Kingdom on or around 28 June 2016 by their mother…’

I accept that there is a lack of clarity around this issue. The parents themselves were uncertain about which was the relevant date. In determining the relevant date I am satisfied that I am entitled to look at the parties’ conduct as well as their written exchanges. In all the circumstances I am satisfied, on balance, that the year expired on 28^th June 2016. Unless by that date the children had acquired habitual residence in the UK, that is the date upon which the wrongful retention of the children began.

In her response to the father’s application the mother raises a number of ‘defences’ under Article 13 of the Convention. However, the first point taken by the mother is that the children are no longer habitually resident in Australia but have now acquired habitual residence in the United Kingdom. If the mother is right on that issue then it is clear that that disposes of the father’s application since the Convention only applies if the children are habitually resident in Australia.

There is a significant body of jurisprudence on the issue of habitual residence. In Re B (A Minor)(Habitual Residence) [2016] EWHC 2174 (Fam), counsel distilled a number of propositions which, it was contended, can be gleaned from the five Supreme Court judgments, addressing habitual residence, delivered since 2013. Hayden J adopted those propositions with his own amendments. They are set out in §17 as follows:

With those propositions firmly in mind I turn next to the evidence.

In his evidence the father does not deal with the issue of habitual residence in any depth. In his second statement he asserts that ‘The children remain habitually resident in Australia having only travelled to England for the purpose of an agreed trip of finite duration.’

The mother makes the point that in Australia the father’s family includes his own father, Brian, his brother, Mat and his sisters Misty and Vanessa. Only Vanessa has met O. Her evidence does not suggest that the father’s family is a particularly close family.

The mother sets out a detailed account of the children’s lives since they have been living in England. The main points she makes in support of this are that:

The mother’s evidence on these issues was unchallenged.

Though, for the reasons outlined above, the statements submitted to the Home Office in support of the children’s application for British citizenship had no relevance to the determination of those applications, they are of some limited relevance to the question of whether the children have become integrated in their social and family environment in England.

In a letter dated 21^st September 2015, maternal aunt, says that since the children arrived in England,

In a letter dated 24^th September 2015, FL, who lives in the same village, says that,

In a letter dated 28^th September 2015, a neighbour, NB, said that she has known the mother since she was five years old. Since they arrived in England she has also got to know the children. She says that,

The consequence of all of this, submits the mother, is that the children have become integrated in their social and family environment in England.

The father accepted that it was entirely appropriate for the mother to want to make new friends for herself and the children. As I noted earlier, he did not criticise the mother for the steps she had taken though he is critical of her failure to consult him concerning, for example, choice of school. The father accepts that when he visited the children in August 2016 they appeared happy and settled.

If I find that the children were habitually resident in the UK at the date upon which the children were allegedly ‘wrongfully retained’ then it follows that the children were not wrongfully retained at all because in those circumstances the Convention does not apply. It follows, therefore, that if that is my finding there is no need for me to address the question of whether any of the mother’s pleaded Article 13 defences are made out.

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.

The 28^th June 2016 is the last of five dates that have been considered as dates upon which wrongful retention occurred. I am mindful of principle (xi) in the list of principles set out by Hayden J in Re B (A Minor)(Habitual Residence). Though it is unnecessary for me to make a finding on the point, on the basis of the evidence before me I consider it to be eminently arguable that these children acquired habitual residence in England much earlier than 28^th June. Indeed, I accept that it is arguable that they had already become habitually resident here by the time their application for British citizenship was submitted.

Having arrived at the conclusion that by 28^th June 2016 the children were habitually resident in the UK it follows that their retention in England beyond that date does not amount to a wrongful retention. The Convention does not apply. The father’s application is, therefore, dismissed.