Family Law Hub

JM v RM [2021] EWHC 315 (Fam)

The father applied for the summary return of his children (aged 3 and 1) to Australia, pursuant to the 1980 Hague Convention. The father was a professional sportsman, born in Australia. The mother was born in England. Both children were born in Australia and had dual British and Australian citizenship. The mother brought them to England in February 2020, with the father's agreement, but did not return. The primary defence of the mother was that there was no relevant wrongful act of retention, because the original due date of return was frustrated by the Covid-19 pandemic, and no alternative due date ever substituted. Mostyn J described this as a novel argument, but "with some hesitation" decided that it should succeed. A wrongful act of retention, whether before or after the due date for return, required there to be a clearly agreed due date of return. By August 2020, when the father made it clear to the mother that he wanted the children to return to Australia, the children were habitually resident in England, and thus the Hague Convention could not be invoked. Even if there had been an operative retention by the mother, the husband's messages were all consistent with his acquiescing with her decision, and thus Mostyn J would have declined to order the return of the children to Australia. The father's application was dismissed.

Published: 06/03/2021


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