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Re H (Abduction:Retention in Non-Contracting State) [2019] EWCA Civ 672

This was an appeal from a return order made in Hague Convention proceedings by Mostyn J.

The mother was born in Uganda but lived in England since 2000 and is a British citizen. The father is Australian. The parents met in Australia and lived there together since 2014; their only child, C was born in 2016. In November 2017 the family travelled to Uganda on tickets with return flights on 23rd January 2018. The holiday was not a success and the parents separated, the mother saying she would never return to Australia. The father was however able to persuade her to go to England with C, as she would not return with her to Australia.

At first instance Mostyn J determined that C was habitually resident in Australia and rejected mother's case that the father had acquiesced in the retention and that there was a grave risk that C's return would expose her to harm or otherwise place her in an intolerable situation.

He also rejected the "ingenious legal argument" put forward by the mother that the Convention did not apply because the alleged wrongful retention had taken place in Uganda.

The appeal
The mother appealed in respect of the court's finding that the retention in Uganda, not a Contracting State, was justiciable in England, arguing that this amounted to applying the rules of the Convention to states that are not parties to it, which is impermissible. It was conceded on her behalf that if this is right, the same would apply to children first removed to a non-Contracting State before being taken to a Contracting one.

The appeal also focused on references in Mostyn J's judgment to the retention having "started" in Uganda and "continuing on a later date in a contracting state", contending that this demonstrated that the judge had failed to follow In re H (Minors)(Abduction: Custody Rights), In re S(Minors)(Abduction: Custody Rights) [1991] 2 AC 476,  which established that retention is not a continuing state of affairs but an event taking place on a specific date.

Held

• The interpretation put forward by the mother would cause considerable difficulties in operating the Convention, providing an easy route for an abducting parent to evade the effect of the Convention by retaining or initially removing the child in a non-Contracting State.

• Removal and retention are events occurring on specific occasions but this does not mean that they cannot continue to be wrongful and within the scope of the Convention just because they took place in a non-Contracting State.

• The interpretation proposed by mother would be contrary to the "duty of the court to construe the Convention in a purposive way and to make the Convention work."

• The only basic requirements for the Convention to apply are:

a) The child was habitually resident in a Contracting State at the date of the alleged wrongful removal or retention

b) That removal or retention must be wrongful

c) The application must be determined in the Contracting State where the child is and

d) The Convention must be in force between both states

• The removal does not have to be to a Contracting State; equally the retention does not need to be in a Contracting State. The Convention can apply when the child is removed to or retained in a non-Contracting State and later taken to a Contracting State.

• Mostyn J, in using the words "started" and "continuing" did not mean that the retention was a continuing state of affairs rather than an event on a specific date; rather he meant that the wrongful retention of 23rd January continued to be wrongful for the purposes of an application under the Convention.

 

Summary by Gill Honeyman barrister, Coram Chambers

You can read the full judgment of Re H (Abduction:Retention in Non-Contracting State) [2019] EWCA Civ 672 on BAILII