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The Supreme Court - 'Hague Convention'20th February 2018 Family Law
The Supreme Court, the highest court in the UK, only hands down a handful of family law decisions each year. Every time a new case is published, most family lawyers will find something in there which will change the way they advise their clients in future. Last week, judgment was handed down in a case involving the international movement of children, specifically how and when an application can be made for children to be returned from one country to another. It is a pretty important decision.
In Re C (children: anticipatory retention)  UKSC 8, the Supreme Court had to decide on the futures of two children who had travelled from Australia to the UK with their mother, who holds British citizenship, in 2015. She made the journey against the background of difficulties in her marriage to the children's father. In many countries, including the UK, it is usually unlawful for children to travel abroad without the permission of both their parents, or a court order. In this case, the father had agreed to an eight week stay in the UK, which they then agreed would be extended for up to a year. Communication continued between the parents. The mother's plans remained unclear but by May 2016, she confirmed that she would not be going back to Australia and the following month stated that she planned to stay in the UK.
If a parent has retained children abroad beyond the end of an agreed trip, the left-behind parent can apply to the court for the children to be returned using the same special procedure available to parents whose children have been abducted by another parent or family member. This process is governed by an international treaty known as the 'Abduction Convention' or 'Hague Convention'. The idea is that children should, in most cases, be returned to their home country quickly after an abduction or wrongful retention, before they can put down roots in the new country and so that the courts of their home country can hear detailed evidence and make a decision about their long-term future.
However, a child could be kept abroad against a left-behind parent's wishes after a lengthy agreed trip, say a year. The left-behind parent might only realise the children are not going to be brought back after the year is up, by which time, they may have been in the country so long that it has become their home, or in legal terms, their habitual residence. Once that has happened, the courts in their former home country cannot make an order for their fast-track (or 'summary') return using the Abduction Convention. Instead, the courts of the new country would deal with the detailed evidence needed to make a long-term decision.
This new case confirms that the law will recognise 'repudiatory retention'. This means that if a left-behind parent can show that the travelling parent has changed their mind and will not be returning the children after an agreed trip, they can apply to the court using the Abduction Convention, even though the end of the agreed trip has not yet been reached.
What does all this mean for parents and children in difficult family situations that span international borders? It is good news for left-behind parents in that they can set the wheels in motion sooner rather than later if they have reason to believe that the length of a previously agreed trip is going to be exceeded, perhaps indefinitely. The Supreme Court spoke of 'the desirability of inducing a prompt change of mind' in the parent who has decided not to return with the children after all and there is no doubt that quick, but nevertheless sensible, decisions are best for children caught in disputes like this.
A possible downside is that this new concept of 'repudiatory retention' could make these fast-track proceedings more complicated as the courts are asked to hear subtle evidence about how and when a travelling parent may or may not have changed their mind to return home. However, the chance to intervene early when things first begin to go wrong should outweigh this.