When couples separate, living apart is a natural consequence and children commonly find themselves with two homes as a result. Where the parents are international, there is a sense of inevitability that one parent (usually the mother as primary carer) will want to return to their country of origin if that person has few or no ties to their current country of residence. What flows from this is a complicated and emotive state of affairs with Children Law intervening to ensure the child’s best interests are protected and preserved.
So what happens when two worlds collide and parents are at odds as to which country the children should live in? In particular, what is the legal position when a parent initially consents to a temporary visit abroad but the children subsequently find themselves settled or ‘habitually resident’ in that country?
On 14th February 2018, the Supreme Court handed down a judgment in Re C  UKSC 8, a landmark decision in relation to international children law, which clarified the law on this very issue. In this blog, Elizabeth Fletcher, Director at Family Law in Partnership Ltd reflects upon the decision in Re C and the implications for the left-behind parent.
The case concerned a British mother and Australian father who, up until 2015, were living in Australia with their two children. By late 2014, the marriage was in difficulty and in 2015, the mother sought consent from the father so she could take the children to England. Initially, the father agreed to an 8-week term and the mother and children arrived in England in May 2015. Following discussions between the parents, the father agreed to an extension of the stay from 8 weeks to 1 year. The mother subsequently gave notice to her employer and started to look for work in England. In September 2015, the older child was enrolled in school in England and in November 2015, the mother applied for British citizenship for both children, unbeknownst to the father and therefore without his consent.
The father continually pressed the mother about her anticipated date of return to Australia. Whilst the mother could not say what her plans were, in May 2016 she informed the father she would not be returning to Australia. In June 2016, she expressed her intention to remain in England.
The father subsequently made an application to the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the ‘Abduction Convention’). One of the issues before the court was precisely when the mother had decided not to return to Australia.
The father’s application was dismissed. He appealed to the Court of Appeal which overturned the decision at first instance. The mother then appealed to the Supreme Court. Lord Hughes gave the lead judgment.
The case before the Supreme Court
There were two issues before the Court:
- what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs; and
- if a child has been removed from their home state by agreement with the left-behind parent for a limited period, can there be a wrongful retention before the agreed period of absence expires (termed “repudiatory retention” by Lord Hughes)?
As to issue 1, it was held that “the Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged.”
The judge at first instance found that the children had in fact become habitually resident in England prior to the mother making her decision to remain in the UK. The Supreme Court confirmed that this therefore closed the avenue for the father to pursue summary return of the children under the Abduction Convention in England.
As to issue 2, it was held that whilst repudiatory retention is possible in law, on the facts of the present case, “there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such.” In the circumstances of the case, it was accepted that the mother only decided she would not be returning to Australia in June 2016 so she could not have been said to be in breach of their agreement prior to this.
Lord Kerr and Lord Wilson gave dissenting judgments in this case, in particular, raising questions as to the true timing of the mother’s intention not to return to Australia which of course might otherwise have produced a different outcome in this case.
What does this mean for parents?
In practice parents need to be wary of a potential change in the child’s habitual residence during a ‘proposed’ temporary relocation. Even if initial consent is given by one parent for a temporary relocation abroad, a child may become habitually resident in that country before the agreed period expires. The unintended consequences could be devastating. This can seem inherently unjust for the left behind parent who, had originally consented to a temporary stay and extension in good faith, but as a result signed away their own chances. Each case will of course be determined on its own facts and the impact on the child will be the court’s primary consideration.
Practitioners and parents will therefore need to give careful consideration as to how they can safeguard the left-behind parent’s position. Thought should be given as to whether an extension of a stay may be likely to preclude an application being made under the Abduction Convention and whether a court might determine that there has been a change to the child’s habitual residence. Consideration should always be given to a written agreement or the appropriateness of an order of the court if there are concerns by the left behind parent. However, it is acknowledged that the timing of travel could prevent such action being taken. In any event, advice should always be sought by both parents to understand their respective positions in any case involving international relocation.
Elizabeth Fletcher is a director at Family Law in Partnership. Elizabeth focuses on all aspects of family breakdown, but has a specific interest in managing arrangements for children both in and out of the court arena as well as resolving financial disputes arising from the breakdown of a marriage or relationship. As the mother of a young child herself, she understands all the practical aspects that need to be addressed by parents dealing with a separation and the different anxieties which parents may have in managing those issues. For further information, contact Elizabeth at E: firstname.lastname@example.org or T: 020 7420 5000.