C (Children)

Judgment Approved

Lady Justice Black:

This appeal arises in proceedings brought pursuant to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”) in relation to two young children, who are 4 and 2 years of age. When their mother did not return with the children to Australia following an agreed period living with them in England, their father sought an order for their summary return. HHJ Bellamy, sitting as a deputy High Court Judge, refused his application by order of 10 November 2016. It is against that refusal that the father appeals.

The facts

Judge Bellamy’s judgment can be found on bailii.org under the title Re P and O (Child Abduction: Anticipatory Breach) [2016] EWHC 3535 (Fam) . It contains a great deal more detail than it is necessary to rehearse for the purposes of the appeal.

The father is Australian and has lived in Australia all of his life. The mother was born in Canada but spent her childhood in England. In 2008, she moved to live in Australia where she met the father. They were married in November 2010 and family life was based in Australia. In November 2014, the mother obtained Australian citizenship. By then, her relationship with the father was in difficulties and they separated on 14 December 2014. The mother was on maternity leave at the time. She told the father that she wanted to make a trip to England before she returned to work. He agreed to an eight week visit and the mother and children came to England on 4 May 2015 for that purpose. They took up residence with the maternal grandmother in her home in Devon and have remained living there since.

Discussions took place between the parents which resulted in the father agreeing to an extension of the eight week period. On 28 June 2015 he sent the mother the following email:

“For the happiness of yourself & the children & for moving on with our lives I am in agreement that u n the children stay in the UK for a year.”

The email left it unclear whether the year’s stay was to run from the date of the mother’s original departure from Australia i.e. until May 2016, or from the date of the email i.e. until 28 June 2016. That was never clarified.

Following the email, the mother gave notice to her Australian employer and looked for work in England. In September 2015, she enrolled the older child at a local pre-school. The children had come to England on a six month visitor’s visa so steps needed to be taken to legitimis