Child abduction appeal allowed for child retained in England over Christmas
A father whose application under the 1980 Hague Child Abduction Convention was dismissed because the child’s habitual residence was held not to be in France has succeeded in appealing the decision in the English courts.
The father of the child, B, argued that the judge was wrong to find that B’s habitual residence was in Australia, and therefore the Hague Convention did not apply.
The appeal was heard in the Court of Appeal (Civil Division) by Lord Justice Moylan, Lord Justice Baker, and Lord Justice Phillips.
Given up everything
B was born in Australia, where her parents were then living. The father was born in France and moved there in 2014, while the mother was born in the UK and acquired Australian citizenship in 2013. The couple married in 2017, the same year in which B was born.
In 2019, the family decided to move to the area of France where the father’s family lived, although the mother described herself as feeling “pressured” to do so. The family gave up their rented property and left on 1 December. The mother had left her job open in Australia until January 2021 and the father’s contract in France allowed for a six-month probationary period.
The family decided to spend Christmas with the mother’s family and arrived in the UK on 20 December 2019. The father returned to France on 27 December because of work commitments. On 3 January 2020, the mother informed the father that she did not intend to return to France with B as she believed the relationship was at an end.
In the father’s original application, he argued that B’s habitual residence had changed due to the family having given up everything they had in Australia and moving all their possessions, and the family dog, to France. B was registered for day care in France, the father had full time employment, and the mother had not worked in Australia for two years.
The mother argued that a return to Australia was an open possibility, and both parents had ensured a safety net was in place in the event that their move did not work out. The family remained registered with their GP, paediatrician, dentist, and health visitor in Australia. Neither the mother nor B spoke anything beyond conversational French.
At first instance, the judge concluded that the process of integration into a life in France had “barely started” when the family went to UK for Christmas, and thus B had not acquired habitual residence in France. On appeal, however, it was submitted for the father that it was “artificial” to suggest that B could still be habitually resident in Australia when there had been a wholesale relocation by the family to France.
A further issue raised in the case was whether or not the 1980 Convention permits a child to be returned to somewhere other than their habitual residence, or whether it could be applied in all cases where a child is habitually resident in a contracting state other than the requested state. This was dealt with as in issue of principle in the judgment of Moylan LJ due to its relevance in other pending cases.
In his judgment, with which Baker LJ and Phillips LJ agreed, Moylan LJ began by examining whether the Convention applied in this case, saying: “Apart from the preamble, there is no other reference in the 1980 Convention to a child’s return being to the state where they were habitually resident. All the Articles simply refer to ‘the return of the child’.”
He continued: “Applied to the facts of this case, the 1980 Convention would apply to the mother’s retention in January 2020 because, on the judge’s finding, B was habitually resident in Australia at that date. It would also seem inevitably to follow that the retention, as a unilateral act, would be in breach of the father’s rights of custody and, therefore, wrongful.”
On whether an order could be made to return B to France even if it was not her habitual residence, he said: “To confine the terms of Article 12 to permitting a return only to the state of habitual residence at the relevant date would not promote the objectives of the 1980 Convention. The power will inevitably only arise if the requirements under the Convention for the making of a return order have otherwise arisen. Why, it might be asked, should the taking parent at that stage be able to avoid the effect of the Convention and why should the child be deprived of the remedy provided by the Convention?”
He continued: “Either the 1980 Convention needs to be interpreted so as to permit the court to order a child’s ‘return’ to a third state or to be interpreted so as to permit the court to decline to order the child’s return to the relevant state of habitual residence. In my view, the former sits much better within the scheme of the 1980 Convention and would better promote its objectives.”
On whether it was appropriate to make a return order in this case, he said: “With all due respect to the judge’s decision, the fact that the mother did not ‘become at all integrated’ and/or that the family unit was not the same as in Australia and/or that B did not have the same activities as those she had had in Australia, do not mean that there was not some degree of integration. These latter factors do not negate the effect of the former.”
He continued: “The judge has not demonstrated sufficiently that she had in mind the relevant factors in B’s old and new lives. She did not carry out a sufficient comparative or balancing exercise of the factors connecting B with France and with Australia.”
Moylan LJ concluded: “In the circumstances of this case B had achieved the requisite degree of integration, in part because the family had severed their substantive connections with Australia, such that B was habitually resident in France as at 3 January 2020.”
For these reasons, the appeal was allowed, with the matter listed for a further hearing in the Family Division.
© Scottish Legal News Ltd 2021