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Supreme Court to decide whether ‘anticipatory retention’ is recognised under the 1980 Hague Convention

Judgment in appeal against C (Children) [2017] EWCA Civ 980 to be given on 14 February 2018

On 14 February 2018 the Supreme Court will deliver its judgment in the appeal against the Court of Appeal's decision in C (Children) [2017] EWCA Civ 980.

Their Supreme Justices will determine whether "anticipatory retention" is a concept recognised under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("the 1980 Hague Convention").

In April 2015, the mother and father reached an agreement that the mother would travel from Australia to England with the parties' two young children. Initially, it was agreed that they would spend 8 weeks in England. They travelled on 4 May 2015. Subsequently, the parents agreed by email dated 28 June 2015 to extend the period to one year. On 27 July 2016, by which time the mother and children had not returned to Australia, the father commenced proceedings under the 1980 Hague Convention. The father alleged that the mother had wrongfully retained the children in England. The mother argued that her retention of the children in England was not wrongful because by the time that the parties' agreement expired, the children had become habitually resident in England.

In the High Court, HHJ Bellamy fixed the date of retention at 28 June 2016 (one year after the email dated 28 June 2015) and he held that there was no principle of anticipatory retention under the 1980 Hague Convention which meant that the mother could not have wrongfully retained the children prior to the expiration of the parties' agreement. He also found that at the date of retention, the children had obtained habitual residence in England. Therefore, the father's application was dismissed.

On appeal by the father, the Court of Appeal unanimously held that there was a principle of anticipatory retention but disagreed upon how it should be applied. The Court disagreed with HHJ Bellamy's finding on the date of retention. By majority of 2-1, the Court of Appeal allowed the father's appeal.
The Court of Appeal granted the mother permission to appeal the Supreme Court regarding the principle of anticipatory retention. The Court will also consider whether to grant permission on two further grounds concerning the Court of Appeal's treatment of the anticipatory breach principle and the date of retention. The father asks that the appeal is dismissed and, in the alternative, raises a cross-appeal to the effect that the High Court erred regarding the habitual residence of the children.

For the Court of Appeal judgment, click here.