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Child abduction and unlawful retention

February 22, 2018 Speech Box

This Valentine’s Day the court of appeal has handed down an appeal on an interesting children’s case relating to the question of child abduction.

In this case a married couple lived in Australia with their two children. At the end of 2014 the marriage was in difficulty and the mother, who holds British citizenship, discussed with her husband the possibility of taking a trip to England with the two children for a period of around eight weeks, before she was due to return to work after maternity leave. The father agreed to the mother leaving with the children on this basis.

The mum and children arrived in England on 4 May 2015 where they have lived ever since. The father agreed to an extension of the initial eight week visit for up to a year at the mother’s request. She gave notice to her employer in Australia and started to look for work in England.

In September 2015 the older child was enrolled at a pre-school in England and then, without telling the father, the mother applied for British citizenship for both children. Her solicitors wrote a letter to the immigration authorities informing them that she and the children would not be returning to Australia for fear of domestic abuse.

The father continued to ask the mother when she and the children were expecting to return to Australia and the mother kept telling him that she didn’t know what her plans were. In June 2016 the mother told the father that her intention was to permanently remain in the UK with the children.

The father then immediately made application in the High Court claiming that the children had been abducted (or unlawfully retained) and asking for a summary return of the children to Australia under the abduction convention.

The issues in the appeal were:

  1. what is the effect of an application under the abduction convention if a child has become habitually resident in the destination country before the alleged wrongful removal or retention occurs, and
  2. if a child has been removed from their home country by agreement can there be a “wrongful retention” before the agreed period of absence expires.

Decision of the court of appeal:

  1. The abduction convention requiring a mandatory summary return, cannot be used if at the time of the alleged wrongful act the child is habitually resident in the country where the request for return is lodged. In such a case, that country has the jurisdiction to decide on the merits of the case and no summary return decision can be made.
  2. The court decided that there could be a “wrongful retention” before the expiry of the agreed period of absence expires, but the judges were divided on whether or not the mother in this case had shown such an intention when the application for British citizenship had been made in November 2015.

 

 

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