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B (A Child) (Abduction: Habitual Residence) [2020] EWC Civ 1187

The court has the power, under the 1980 Convention, to order return to a state other than the state of the child’s habitual residence at the relevant date of the alleged wrongful removal or retention.

The parties had met in Australia and lived there throughout their marriage. B (now 2 years old) was born in Australia to the parties. M was born in the UK but now an Australian citizen. F was born in France.

B lived in Australia with her parents until December 2019. At this time, the parties moved to live in France, in the area where F was originally from. The parties found a rented property and F had a job with a 6 month probationary period. M's job in Australia had been left open until January 2021.

On 20 December 2019, the parties and B travelled to the UK to spend Christmas with M's family. M and B were due to stay in the UK longer than F due to his work commitments in France. After F had returned alone from the UK to France, M informed F in January 2020 that she believed the relationship between them was at an end, and she did not intend to return to France with B.

F sought a return order pursuant to the 1980 Convention for B to be returned to France.

Decision at First Instance
The matter came before Judd J at first instance. No oral evidence was heard before an ex tempore judgment was given.

F argued that B was habitually resident in France. The parties had moved all their possessions, including their pet dog, to France. They had given up their home in Australia, B was registered for day care in France.

M argued that B was still habitually resident in Australia, and the door to return to Australia had been left open. She argued that she had not settled in France, B had not yet started nursery, and M's job in Australia remained open.

During the hearing, F accepted (although it was unclear how the acceptance came about), that his application was dependent upon Judd J finding that B was habitually residence in France on the relevant date.

Judd J found that B was not habitually resident in France on the relevant date. She held that B had not achieved a sufficient degree of integration in a social and family life in France by 03 January as was required by the authorities [24]. Judd J therefore dismissed F's application.

The Appeal
F appealed. The International Centre for Family Law, Policy and Practice ('ICFLPP') were joined as intervenors due to the importance of the issues raised on appeal.

Arguments raised on behalf of F were:

(1)(a).
The judge was wrong not to find that there had been a wrongful retention within the scope of the 1980 Convention on the basis of her determination that B was still habitually resident in Australia [26]. This was because the 1980 Convention was engaged by the child, at the date of the wrongful removal or retention, being habitually resident in a convention state [27].

M accepted that, in respect of this issue, the 1980 Convention does apply if the child is habitually resident on the relevant date in a contracting state other than the requested state [40].

(1)(b).  
F argued that under the 1980 Convention, the court has the power to order a child's return to a state other than that of his or her habitual residence at the date of the wrongful removal or retention [28]. F argued that:

- The Explanatory Report on the 1980 Convention by Professor Perez-Vera,  discussed the Convention having been framed deliberately so as to leave such an option open to the courts [29];

- The words in the 1980 Convention Preamble, which state that it is designed to 'ensure the prompt return [of children] to the state of their habitual residence' should not be given undue weight [30];

- The 1980 Convention should be construed widely in order to ensure maximum protection for children who have been abducted, this is consistent with the objectives of the Convention and also prevents the creation of a lacuna which would not be in the interests of children who had been removed or retained [31];

- Article 12 should be interpreted, in addition to enabling a return of a child to the habitual residence state, but also to return a child to the state from which it has been removed, and/or to return to a child's primary carer in another state [32]. 

M argued primarily that there was no power under the 1980 Convention to return a child to a state other than their state of habitual residence. i.e. the word return means return, and not relocation to a third state [41]. M argued the Preamble was more significant than the Explanatory Report, which is now 40 years old. M relied on Hanbury-Brown v. Hanbury-Brown [1996] Fam CA 23 and Lady Hale's observations in Re J [2016] AC 1291 (a 1996 Convention case) where she warned 'it would be unfortunate if words in the Explanatory report were treated as if they were words in the convention itself' [43].

M further warned that the question whether the court could order return to a third state should be considered within the broader jurisdictional framework of the 1996 Convention and BIIa. Under these provisions, the courts with substantive jurisdiction are those in which a child is habitually resident. M argued that sending a child to another state could mean a state which does not have substantive jurisdiction to make welfare decisions [45].

In the alternative to the court having no such power, M argued that if there was such a power to return to a third state, one possibility may be that this power of the court was limited to achieve a return between child and primary carer [42].

The ICFLPP submitted that Article 12 should be interpreted as permitting a return order to a third state [52]. It was argued that this approach would be consistent with a purposive construction of the 1980 Convention because it would promote the protection of children from the harmful effects of international child abduction [53]. 'This approach would ensure that the remedy of summary return would be available to a greater number of children. It would also promote the operation of the 1980 Convention as a deterrent to parental abduction' [53].

(2)
F argued that Judd J's decision that B remained habitually resident in Australia was clearly wrong, and B had become habitually resident in France [34]. F argued that the focus of the court at first instance was too centred upon whether life in France replicated that B had previously had in Australia, and placed undue weight on the doubts and feelings M had in relation to the move [37-38].

M opposed F's submissions. She argued Judd J had reached a decision which was open to her on habitual residence, and there was therefore no basis upon which the appellate court could interfere [48]. When asked by Phillips LJ, it was submitted on behalf of M that the question was not what continuing connections B had with Australia, but whether the deep roots she had had in Australia had been pulled up, which M said they had not [51].

CoA Determination
Moylan LJ sets out the relevant law in detail in paragraphs [56]-[99].

(1)(a)
The 1980 Convention applies whenever the child is habitually resident in a contracting state, other than the requested state at the date of the alleged wrongful removal or retention [101].

The 1980 Convention would therefore apply to M's retention in this case, even with the first instance court's finding that B was habitually resident in Australia, and not in France [102].

(1)(b)
Moylan LJ concluded that there is a power under the 1980 Convention to order that a child be returned to a third state [104]:

- The proper construction of 1980 Convention is a purposive one ( see Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224, Butler-Sloss LJ said 'it is the duty of the court to construe the convention in a purposive way and to make the convention work') [105];

- The purposes of Article 12 include: protecting children from the harmful impact of abduction; providing a prompt remedy; and discouraging abduction generally [106];

- The Preamble is setting out the general objective of the Convention in the interests of children generally rather than seeking to define the scope of orders which can be made in respect of specific children under its provisions [107];

- The Explanatory Report could not be clearer that this issue was expressly considered at the time of drafting the 1980 Convention and 'a proposal to the effect that the return of the child should always be to the State of its habitual residence was not accepted' [108];

- Although obiter, Lord Hughes would not have referred to the Explanatory Report and O v. O (Child Abduction: Return to Third Country) [2014] Fam 87 in  Re C and another (Children) (International Centre for Family Law, Policy and Practice Intervening) [2019] AC 1 in the way he did if he did not agree with their effect [109];

- Confining Article 12 to only permit return to the state of habitual residence at the relevant date would not promote the 1980 Convention objections [110].

- 'Clearly, any such power must be used with consideration care so that it does not procure an effective relocation without any concomitant welfare enquiry. It is to be used only when it is, in effect, procuring the children's return. The most obvious example when it might be used is when the child is being returned to his or her primary carer. Another example might be when, as in this case on the judge's determination of habitual residence, the family has moved to a new state but has not yet become habitually resident there' [117].

Moylan LJ does not go on to consider whether, on the facts of this case, an order to return to a state other than the one of habitual residence should be made [121], because under issue (2), he goes on to find that B was in fact habitually resident in France, not Australia, at the time of M's retention of B in January 2020 [122-130].

Moylan LJ that matter would now have to be listed for a further hearing in the Family Division, to determine the exceptions relied on by M [131].

Summary by Bethany Scarsbrook, barrister St Johns Chambers

Read the full judgment of B (A Child) (Abduction: Habitual Residence) [2020] EWC Civ 1187 on BAILII