Hague Convention appeal clarifies 'anticipatory retention' point says Nicola Frost

8th August 2017

Nicola Frost, writing for Family Law Week, explains the implications of a Hague Convention decision.

The CA unanimously held, "anticipatory retention" is a concept that must be recognised by the Convention. By a 2:1 majority (Black LJ dissenting on this particular point) it was further held that "communication" of an intention to retain children (prior to the end of an agreed, extended stay) is not necessary. As such, the mother's conduct surrounding an application for British Citizenship for the children may amount to prima facie evidence of her intention to retain at that time (even though the father only became aware of the application during the course of the proceedings). Case remitted for rehearing. The CA did not find the judge had erred in his approach to the issue of habitual residence; however, this will necessarily be considered afresh in the event that wrongful retention is established to have occurred at an earlier date.