On appeal from: [2017] EWCA Civ 980

This appeal considered whether ‘anticipatory retention’ is a concept recognised under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

The Supreme Court allowed the appeal. The Court held that it is unpersuasive to read the Abduction Convention such that summary return is available if, by the time of the act relied on as a wrongful removal or retention, a child is habitually resident in the state where the application for return is made. This is because the point of the scheme adopted by the Abduction Convention was to leave the merits to be decided by the courts of the place of the child’s habitual residence. The Court held that the Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the child’s habitual residence, and there is no room for a mandatory summary decision.

The Supreme Court further considered that repudiatory retention is possible in law and that the desirability of inducing a prompt change of mind in the retaining parent is an argument for recognising a repudiatory retention when and if it occurs. Nonetheless, the Court concluded that, on the present facts, there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such. Therefore, there was no basis in law for criticising the judge’s decision as to habitual residence in this case.

For judgment, please download: [2018] UKSC 8
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (9 Oct 2017 morning session) (9 Oct 2017 afternoon session) (10 Oct 2017 morning session)