Temporary, but not

by Martine Wernsen | Jun 14, 2022

Temporary, but not.

The mother was to stay with the child in England for 8 weeks. Later, the father agreed to a one-year stay. The High Court ordered that the children now have their habitual residence in the UK.

C (Children) (2018) UKSC 8 United Kingdom Supreme Court14 February 2018, HC/E/UKe 1453

8 weeks turn into 12 months

The mother and father met and married in Australia. The mother was a British national and the father an Australian national. Their two children were born in 2012 and 2014, and during the latter stages of the mother’s maternity leave, the marriage was in difficulties.The father agreed the mother could travel to England with the children for 8-weeks and they arrived in England in May 2015. Further discussions in late-June 2015 resulted in the father agreeing to the trip being extended by up to a year.The mother ended her job in Australia and prepared for a life in England. She began looking for work in England. She enrolled the oldest child in school in September 2015 and, without telling the father, began applying for British citizenship for both children. In the letter her solicitors sent to the immigration authorities on her behalf, it was said that she had been the victim of domestic abuse at the father’s hands and that it was not safe for either her or the children to return to Australia.In the meantime, the father continued to press the mother on the children’s expected date of return. In February 2016, she said she did not know what her plans were, but she would not be returning in May. In June 2016, she confirmed that she intended to remain in the UK “for the short term”. The father subsequently commenced his application for the children’s summary return to Australia in July 2016.

High CourtThe High Court refused to order the return of the children. The country of habitual residence has primary jurisdiction in respect of matters of parental responsibility and the fundamental principle underpinning the Convention is to support the jurisdiction of the courts of the country of habitual residence to exercise jurisdiction over the child. Summary return from a country where a child has become habitually resident is inconsistent with that purpose. The Convention cannot be invoked if by the time of the alleged wrongful act the child is habitually resident in the requested state.

Exercising rights of custody

When a left-behind parent agrees to a child travelling abroad, he is exercising, not abandoning, his rights of custody. Those rights include the right to be party to any arrangement as to which country the child is to live in. The left-behind parent does not give up his right of veto by agreeing to travel on the basis that a stay is temporary and that the child will be returned as agreed. As such, if the travelling parent does not honour the temporary nature of the stay abroad and instead retains the child without any intention to return which is manifested by some objectively identifiable act or statement, it will amount to a repudiation of the left-behind parent’s rights of custody and the retention will become wrongful.

Repudiatory retention exists and involves a subjective intention on the part of the travelling parent not to return, manifested by objectively identifiable act or statement. There is no requirement that the repudiation be communicated to the left-behind parent. A purely internal unmanifested thought will not constitute a repudiatory retention.

Read more about International Child Abduction

Temporary, but not

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