Father v Mother

MRS JUSTICE LIEVEN: This is an application by the father for the summary return to Australia of two children: A, aged 8 years and 11 months, and B, aged 5 years and 7 months. The children had both lived in Australia prior to April 2019. The facts of the case is that the mother is British; the father holds Australian and European passports but has, I believe, lived in Australia all his life.

The parties met in 2002 and married in November 2006. The father's family live in Australia. The couple have lived in Australia throughout their marriage up to April

There have been difficulties over the years in the marriage, and the parents have been to marriage counselling in the past. It is not disputed that the father has had problems with alcohol throughout the marriage. It seems that the mother had been keen to move to England, particularly after August 2018, when she returned to England for her grandmother's funeral. When she went back to Australia, she was keen for the family to move to England. Her father, who gave evidence before me, had become unwell in 2018. Initially, his condition was undiagnosed, and then in around November 2018, it was diagnosed as essential thrombocytosis. This is a condition of the blood platelets which, as I understand it, is itself cancerous but, more critically, can lead to leukaemia, if not properly controlled.

The mother had urged the father to move to England in late 2018, but he was resistant (indeed, I think, from his evidence, strongly resistant) because he had a job that he enjoyed in Australia, the children were settled in Australia, his family were in

I heard oral evidence from the mother and the father. The father's evidence was that he now says he was pressurised into agreeing to the move, and was misled by the mother both as to her intentions and as to the seriousness of her father's ill health. The question of what was agreed between the parents in January 2019 is hotly disputed and I will return to it below. The factual position is that their house in Australia was rented out, and that some of their possessions were put in storage and some were brought to the United Kingdom (and when I say some were brought to the United Kingdom, that is more than suitcases; as I understand it, there were storage crates brought to the United Kingdom).

Many of the children's possessions were brought to the United Kingdom, and the children's pet rabbits were rehomed. A, the older boy, left the school he was in, and my understanding of the position, having seen an email from the school, is that his place was not formally kept open, but there seems to have been an assumption that he could go back to that school if and when he returned to Australia. No reservations were made in respect of B's schooling, because he was not in school at the time. I have had witness statements from various members of the father's family who say that they thought the move was for two years. I will come back to the evidence as to what was agreed, and my conclusions on that below.

The family moved in April 2019, and I think it is fair to record that it is clear that the father accepted the move at that stage and talked to the children about it in positive terms. He bought into the move, to that extent, in April 2019. The family moved to England in April 2019, and initially lived with the maternal grandparents. In June, they rented a house in the same village. A and B both took up places in the local village school, and have been there since; so, must now be into their third term. A has shown some behavioural problems at school, and I have seen evidence that he is receiving help for those problems through the school and, indeed, the NHS. The evidence is that the children do sports and normal school and out of school activities in the village, both through the school and in local groups.

The mother fairly quickly got a part-time job with a charity. The father's position was that the mother had agreed that she would get a full-time job on a higher salary, but the mother told me in evidence that she tried to do so and failed, and she took up a part-

The evidence is clear that, contrary to what certainly the mother had hoped, the relationship remained or resumed being rocky when the parties came to England, and the mother went to a divorce solicitor (indeed, the solicitor she now instructs) in November 2019. On 15 December 2019, the mother went out to the local shops, and when she came back, the boys told her that the father had hit them with his belt. The father accepts he did this. He says that the boys were misbehaving and he did it to make them pay attention; he said that he did not lose his temper. Within days of this incident, the mother left the home with the boys and moved back in with her parents. She, the children and her parents (the grandparents) went to East Africa in January 2020, and she filed for divorce when she returned on 18 January 2020. The father then made this application at the end of January.

I turn to the father's case and his evidence. The father's case is that the mother had deceived him and that he now believes she had always intended to remain in England with the boys. So, in law, his case is that, firstly, there was an unlawful removal from Australia in April 2019, because his consent was vitiated by the mother's dishonesty; and, secondly in the alternative, that there was an unlawful retention in England in January 2020 or at some earlier date, when the mother made an unequivocal decision and declaration that she would not return to Australia. He says that the mother effectively misled him and hatched a plan to persuade him to go to England with the children, with the clear intent that she would then divorce him in England and that her position would be improved because she was in England.

A principal basis of this allegation is that the father found a note on the mother's iPad, which was dated 18 September 2018, i.e. before they decided to come to England. In this note, the mother has recorded various instances of where she thought the father had behaved badly, such as him threatening to lock the children out of the house, speaking rudely to her, swearing at somebody in the street, and then records the following:

The father says that this is evidence of a plan to divorce him in England and shows that the mother never intended to return to Australia to live. He also says that the mother misled him over her father's ill health and told him, before he agreed to go to England, that her father was terminally ill. The father says that he was very sympathetic to the mother on this point because he appreciated how important it was to her for her to spend what he thought were her father's final days in England with him.

The father then says that the agreement was to move to England for two years or (I think this is what he assumed) until the maternal grandfather died, but definitely not longer, and that there was an absolute intention to return to Australia after the period had expired. The father then says that when they did get to England, the mother's attitude to him changed, and she became cold and inattentive. He says that the incident on 15 December 2019, when he hit the boys, was merely an excuse which the mother used as a basis for the divorce.

I have to say at this point that I found his case on this slightly troubling, because he said that the mother had overreacted to the incident because she was not there, there were no marks on the children and she had recorded the children telling her about the incident. So, his case was that she was simply seeking to amass evidence to use against him.

Finally, the father says that the children are not habitually resident in England, that they are not settled here and that A, in particular, is unhappy here, and both children want to return to Australia. For the father's argument on being misled to succeed, his case is that the mother was pursuing what Mr Anderson described as “a cunning plan”. She deleted part of the iPad note subsequently, and the father says that she did that to cover her tracks, and the father relies on the fact that she went to a divorce solicitor in November 2019 before the incident on 15 December 2019.

The mother's evidence was that the marriage had had its ups and downs over the years, partly, at least, because of the father's problems with alcohol. She says that they had been contemplating separation in late 2018, which is why she wrote the note on the iPad as an aide memoire. The father agrees that they had been contemplating separation, but he does not agree that that is why there was the note on the iPad. The mother says that she wrote herself notes in order to remind herself of events and because she tended to blame herself for problems in the marriage, and wanted a record to look back on. She said (and this is what the father accepts) that they discussed splitting up in December 2018 when on a holiday with the grandparents in East Africa, and that was partly again because the father had been drinking too much and had been behaving badly on holiday. To some degree that is supported by the grandfather’s evidence. But she says that the parents had decided to try to make a go of it and had agreed to go to counselling or to seek help when they got back to Australia at the end of 2018. She had gone to counselling, but the father had changed his mind and had not done so. The mother accepted that she had wanted to move to the United Kingdom in late 2018, but she denied any intention to split up from the father. She said she was committed to trying to make the marriage work, and she thought a move to England would give them a fresh start.

In terms of the agreement they reached, it was the mother's evidence that the agreement was that they would move for two years and would then assess the situation, but she did accept that there was no agreement that they would move permanently. She absolutely denied misleading the father over her father's illness and said that she had never suggested it was terminal. She said that when they got to England, she had a lot on her plate and that might be why the father felt that she was less attentive than she should have been. It was her evidence that she had continued to try to make the relationship work, partly because she continued to love her husband but also because she did not want the family to split up and the children to grow up in a separated family. However, and she was extremely clear on this after being asked questions on it on a number of occasions, it was her evidence that the incident on 15 December 2019 was decisive. She said in terms that it was simply not acceptable to hit a 5 and 8-yearold child with a belt. But she says she did not make the final decision to leave until she was on holiday in January 2020 when the father was not there. She said she had

Mother was asked about a note in June 2019 on her iPad, which makes reference to

The mother's evidence is that the children are well settled here. She accepts they miss aspects of life in Australia, including their friends and the paternal family, but it is her evidence that they are fully integrated here.

Against that background, the issues I have to consider are as follows. Firstly, did the father give clear and unequivocal consent to move to England? Secondly, was that consent gained falsely by the mother because she always intended to remain in England? Thirdly, what were the terms of the agreement? Fourthly, was there a repudiatory retention by the mother when she said in terms that she would not return to Australia? Fifthly and closely related, what is the date of that alleged repudiatory retention? Sixthly, by the time of the alleged repudiatory retention, were the children habitually resident in England? Finally, should I use the inherent jurisdiction to order the children to return to Australia in any event?

I will deal with the law as I deal with the various different issues, rather than setting out the law in its totality first. Before I deal with that, I have some comments on the evidence. Looking at the evidence overall, it is plain that both parents do much love these children and want what they both perceive to be the best for them. I do not think

I do not think the father deliberately lied, but I do think he saw things very much from his own perspective. Two examples: first of all, that the mother's inattention to him when she came to England was because she had misled him, rather than the position being as the mother perceived it, and seems to me wholly reasonable, that having moved to England, having two young children to settle, living with her parents and worried about her father's health and indeed having to deal with a husband who was probably not very happy and had alcohol problems, she may have been somewhat less attentive than he might have desired. A second example of his focus on himself was that when faced with the fact that he had hit a 5 and 8-year-old with a belt, the mother was horrified. The father's view, in evidence, was that this was merely an excuse for her to leave. In my view the Mother’s response was a wholly reasonable one, and indeed one that many would share.

Turning from that overview of the evidence, issues one and two are the agreement to move and what the terms of the agreement were. The leading case on consent is in Re P-J [2010] 1 WLR 1237. The passage I need to read is at paragraph 48 in the speech of Ward LJ:

The father's case here turns on the mother having decided to get him and the children to England, and then to divorce him in England. In my view, the evidence does not support this analysis. First of all, as I have already said, it involves the mother engaging in a degree of scheming and pre-planning, for which there is very little evidence and which does not accord with my impression of her as a witness. Secondly, in my view, her account is very much more likely. She saw the move to England as being a fresh start in the relationship. She wanted to go to England to be with her father who was unwell, and there was a good opportunity to go in early 2019 because the father had lost his job. That divorce was a possibility is obvious and was accepted

In terms of the iPad note, I accept the mother’s evidence that that was her thinking about her position; no more, no less. We know, and it is accepted, that she was contemplating separation and divorce in 2018. I accept her evidence that she thought going to England was a fresh start. Critically, in terms of the submission that there was a cunning plan, the plan does not actually work, because it is not clear why, if that was the case, the mother waited until January 2020 to file for divorce but did not wait until April 2020, when the children would have been here for a year and her position would have been much stronger under the Hague Convention.

Mr Crosthwaite's analysis involves me assuming that the mother was a highly scheming person who deliberately waited six months because it would improve her position for divorce, but did not realise she should wait 12 months, and thus undermined her position under the Hague Convention. In my view, that makes little sense. If the mother was the schemer that the father suggests and Mr Crosthwaite submits then she would have gritted her teeth and waited for 12 months. In my view, it is much more likely that the event on 15 December was indeed the straw that broke the camel's back and, in my view, that is perfectly understandable. Hitting a 5 and 8year old with a belt is not acceptable parenting. It is, indeed, abuse and it is, in my view, hardly surprising that the mother took it so seriously. It seems to me highly unlikely that she was simply using it as an excuse. The fact that she recorded what the children said does not mean she was amassing evidence against the father; it means that, in a fairly modern way, she was trying to keep a record.

Mr Crosthwaite cross-examined on the basis that there was a misrepresentation that would vitiate the father's consent if the mother had failed to tell the father about her thought processes in the iPad note, as to possible permutations on divorce. This is an appropriate moment for me to comment on the approach to Hague Convention cases. There is, in my view, an unfortunate tendency to try to analyse parents' relationships as if they were contractual agreements. In the passage I have just read from In re P-J, Ward LJ expressly deprecates this approach, and I entirely endorse what he said. In

The next issue is what were the terms of the agreement to move to England. In my view, similar considerations arise in my analysis of the evidence here. There was no formal agreement with all the caveats and detailed terms of a contract. Both parents, in my judgement, thought they were moving for a significant time, probably around two years. The mother appears to have thought that they would probably return. The father thought they would definitely return. It was not a fixed-term agreement such as one might have with an academic going for a sabbatical year, for example. If the parents had sat down in a quasi-contractual situation and tried to turn their mutual thoughts into a legal agreement, the mother would probably have said, "We'll have to see how it turns out." The father might have said, "I'm only going if you promise you'll come back.", but in the circumstances where the mother was trying to give the relationship another chance he might not have said. It is not possible to know what would have happened next in those negotiations. In my view, the terms of the agreement were simply that they would move to England for a probably limited but indefinite period, and how that period would come to an end was not set out.

The next issue is whether there was a repudiatory retention of the agreement and, if so, when. Repudiatory retention has been a controversial issue in these cases, and is now

I note at this point that in Re C there was a left-behind parent, whereas here, the factual position is, of course, different because both parents had travelled with the children.

In my view, this case well illustrates the problems of trying to bring something close to a quasi-contractual analysis into the Hague Convention. The parents here did not reach a clear agreement as to the precise terms on which they moved to England, they did not put anything in writing and they did not agree, whether expressly or impliedly, what would happen if there was a material change of circumstance, such as the father assaulting the children and the mother deciding to divorce the father. Most importantly, as I have already said, in my view, they had somewhat different but unexpressed views as to what they were agreeing to. This does not mean there was no agreement, but it does mean that some elements of the agreement were not set out.

As I have already said, it was probably the case that the father thought that there was some kind of term of a maximum of two years or sooner; the mother thought two years and then review. If there had been a contractual negotiation, the mother would have sought to negotiate a review clause with extensions. But equally, so might the father, if he got a very good job in England, if he was happy in England, and if the marriage had improved. In my view, there was no repudiatory retention here, because the terms of the agreement were insufficiently clear to establish that the mother's decision to apply for divorce and to say that she would not go back to Australia at this stage, certainly not to live, is not a repudiation of the agreement to move to England. This is not because the mother's decision not to return is not clear and unequivocal, but because the terms of the agreement are themselves not clear and unequivocal in all respects.

Mr Anderson argued that there was no repudiatory retention because the agreement was to stay for two years, and it is the father's application under the Hague Convention to try to force the mother to return earlier which is itself repudiatory of the agreement. In my view, this yet again shows the problems with being too legalistic. Technically, if this was a contract, Mr Anderson might be right. But it is perfectly clear on the evidence that the mother has no intention to go back to Australia to live, certainly at the present time, and there is no reason to believe that that intention would not remain the same in April 2021, i.e. when the expiration of two years arises. The more realistic analysis, in my view, is that there is no repudiatory retention because there was no clear term to the agreement as to how long they would stay and whether they would decide to remain in England.

But further, in any event, and I should emphasise that this finding on habitual residence will make everything I have said on repudiatory retention unnecessary, the next question is whether or not the children were habitually resident in England at the date of any alleged repudiatory retention. It is clear from Re C that even if there is a repudiatory retention, if the children are habitually resident in the new country as at the date of that repudiatory retention, then the court in the new country (here England) has jurisdiction. If there was a repudiatory retention, then, in my view, it could only have been in January 2020 when the mother decided to divorce. I reject any argument that there could possibly have been a repudiatory retention before that, because before that we were merely dealing with the mother's potential thoughts or possibilities as to divorce.

As at January 2020, these children were clearly habitually resident in England. There is a plethora of authority on habitual residence and I will use the summary of that authority given by Hayden J in Re B(A child) (Custody Rights Habitual Residence) [2016] 4 WLR 156, at paragraphs 17 and 18. Paragraph 17:

Mr Crosthwaite also referred me to Re L [2014] AC 1017 and, in particular, paragraph 20 and the reference to the test in Mercredi v Chaffe, although that is reflected in what Hayden J has said in any event. It appears from that list and from the

In terms of whether they are settled here (not settled in a legal sense; settled emotionally) the father says no and the mother says yes. It is important to bear in mind that these are young children who have left the home they have known all their lives in Australia, left their school and left their friends. So, it is not surprising that they have or may have taken some time to settle. But also, very importantly, they may well be very unsettled by the parental conflict that has been going on, and that may well have made it more difficult for them to feel happy and settled in the UK. It is hardly surprising that they miss Australia, their friends, the parental family and the school.

The father says that A is unhappy in England and has behavioural problems and that both children want to go back to Australia. However, in my view, that does not begin to show that he is not integrated, or the children are not integrated, for the purposes of habitual residence in England. It is more than possible that A's behavioural problems have as much, if not more, to do with difficulty and tensions in the parental relationship than they do about not being integrated in England. I am simply not in a position to reach a view as to the degree to which the children are happy in England. But, secondly and equally importantly, even if the children are unhappy, that does not mean they are not integrated. They are completely different concepts. In my view, the evidence is absolutely overwhelming that these children are integrated in their daily lives in England with their family here and with their schooling and their activities here. The question of parental intention gets one nowhere in this case, because it merely takes one back to the fact that the parents have no joint intention. But what the children do have here are strong family roots. So, my judgment is that these children were habitually resident in England as at January 2020.

The final issue is that of inherent jurisdiction. Mr Crosthwaite argues that if even if I am against him on the Hague Convention, I should order the return of the children under the inherent jurisdiction, and he points to the fact that in the case of Re NY [2019] 3 WLR 962, the Supreme Court found that there was the power to return under inherent jurisdiction, even where the case fell outside the Hague Convention. The Court referred to an earlier case of Re L, also in the Supreme Court, [2014] AC 1017, where the child had indeed been returned under inherent jurisdiction, the Hague Convention not having applied. It is worth noting that Re L was a slightly unusual situation because the child had come to England pursuant to an order of a Texas court which was subsequently reversed on appeal. However, by the time there was an application to return under the Hague Convention, the child had been in England for over a year and was habitually resident here.

In my view, it is clear from ReNY that the courts should be slow, if not very slow, to order a return under the inherent jurisdiction where the case would not lead to a return under the Hague Convention. There is the power to do so, but that does not mean that the court should routinely exercise that power. In this case, I do not have the material that would allow me to make a welfare determination that it was in these children's best interests to return to Australia. That is a highly complicated issue which would require considerable evidence both in terms of the children's position, their wishes and feelings, but also further evidence from the parents. In my view, the appropriate way to determine that matter is for the father, if he so wishes and intends, to make an application under the Children Act and then to apply for a specific issues order to relocate to Australia. The matter can then be properly considered on full evidence.