In the Matter of C (Children)

This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. The appeal raises two questions: the effect of a child's habitual residence in the destination State on the application of the Convention and whether and when a wrongful retention of a child may occur if the travelling parent originally left the home State with the consent of the left-behind parent or under court permission and the agreed or stipulated time for return has not yet arrived. The appeal also considers whether the trial judge's conclusions on the habitual residence of the children and whether a wrongful retention occurred were properly open to him. The court found that if the child is habitually resident in the requested State by the time of the act relied on as wrongful, then the requested State has primary jurisdiction to make a decision on the merits. Therefore, a summary return under the Abduction Convention is not available. The court also found that there is a concept of repudiatory retention known to the law. This occurs when the travelling parent repudiates the temporary nature of the stay and sets about making it indefinite. The court found that the mother's decision to retain the children in England was an objectively identifiable act of repudiation. However, the court found that the children had already acquired habitual residence in England by the time of the wrongful retention, so the Abduction Convention could not apply to call for a mandatory summary return. The mother's appeal against the order of the Court of Appeal must succeed, while the father's cross-appeal in relation to the finding as to habitual residence must be dismissed.