Supreme Court judgment offers greater clarity for international families with children

Posted: 15/02/2018

A recent Supreme Court judgment in the case of In the matter of C (Children) [2018] UKSC 8 will have a significant impact on international families who relocate with children.

On first reading, the judgment appears to turn on a technicality, and be of direct relevance only in a small number of cases involving allegations of child abduction. However, the judgment really goes to the heart of a dilemma facing many international families with children: at what point does a temporary relocation become permanent? And what can a parent who does not want the child to move permanently do to stop it?

The facts of the case

A married man and woman had been living together in Australia with their two children until 2015. By the end of 2014 the marriage was in difficulties. The mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight-week stay. The mother and children came to England on 4 May 2015 where they have since remained. Discussions between the mother and father resulted in the father agreeing to an extension of the eight-week visit up to a year. Based on the extension, the mother gave notice to her employer and looked for work in England.

In September 2015, the mother enrolled the older child at a local pre-school. Without telling the father, on 2 November 2015, she applied for British citizenship for both children who had entered England on six-month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse.

In continuing correspondence, the father pressed the mother on the children's expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK.

The father wanted the children to return to Australia and made an application for return under the Hague Abduction Convention (the Convention). The Convention provides that a child cannot unilaterally be removed from their country of habitual residence by one parent. If that happens, the Convention provides a fast-track procedure for returning the child to their country of habitual residence.

The questions to consider in this case were:

• whether the father could apply under the Convention as soon as he became aware that the mother intended to retain the children in England beyond the agreed period of time, or whether he had to wait until that period had elapsed. In other words, whether the mother had committed a ’repudiatory retention’, in November 2015 or April 2016. This was of huge significance, because the children were still habitually resident in Australia on those two dates. If the mother had committed a ’repudiatory retention’ on one of those dates, any subsequent steps she took to integrate the children into life in England would not have had the effect of changing the children’s habitual residence from Australia to England; and
• whether the court could order that the children must be returned to Australia under the Convention, even after they had become habitually resident in England.

Five Supreme Court judges heard the case. They all agreed in relation to the second point. It is not possible to apply for the return of a child under the Convention once the child has become habitually resident in the new state.

The judges also agreed in principle on the first point: they found that it is indeed possible to make an application under the Convention once a 'repudiatory retention' has taken place.

Three out of the five judges, led by Lord Hughes, felt that in this case the first instance judge had been entitled to find that the mother had not formed an intention to retain the children in England in November 2015 or April 2016 and that, by the time the father issued his application the children had become habitually resident in England.

Two judges, Lords Kerr and Wilson, felt the first instance judge had been wrong, and that the evidence suggested that the mother had indeed decided to retain the children in England in either November 2015 or April 2016. The effect, had Lords Kerr and Wilson been in the majority, would have been that the children could not subsequently have become habitually resident in England, and that the father could therefore have applied for them to be returned to Australia under the Convention.

What are the implications of the judgment for international families with children?

• Parents must be extremely wary of agreeing to allow children to move to another country, even on a temporary basis;
• it is possible for a child to become habitually resident in another country, even against the vociferous opposition of one of their parents;
• it is exceptionally difficult to calculate the point at which a parent decides to breach an existing agreement that children should move temporarily to another country, and therefore to decide at which point to make an application under the Convention;
• any parent who feels that the other parent is likely to extend a temporary stay needs to take urgent advice or risks losing the ability to make an application under the Convention; and
• a parent who wishes to turn a temporary stay into a permanent move also needs to take urgent advice, so as to avoid taking steps that could constitute a ’repudiatory retention’ and open the door to an application for the children’s return to their home country under the Convention.

Simon Blain, a partner in the family law team at Penningtons Manches, said: “This is a really important judgment and brings some much needed clarity to this difficult area of the law. However, it does emphasise the very difficult issues faced by international families with children. It is surprisingly common for parents to agree to a temporary move, for all sorts of reasons. The unintended consequences, and the repercussions, can be enormous. Parents should not consider agreeing to any sort of international move, except for an ordinary holiday, without taking specialist advice.”

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