Rcl v Apbl Hc Inv

JurisdictionNew Zealand
CourtHigh Court
JudgeGendall J
Judgment Date11 June 2012
Neutral Citation[2012] NZHC 1292
Docket NumberCIV-2012-425-000145

[2012] NZHC 1292




L A Anderson for appellant

G Collin and L Harrison for respondent

Appeal from a Family Court decision ordering the appellant to return two children to the United Kingdom pursuant to s105 Care of Children Act 2004 (“COCA”) (application to Court for return of child abducted to New Zealand) and the Hague Convention on International Child Abduction — parties both New Zealanders but lived in United Kingdom — mother returned to NZ with children on pretence of a holiday with permission of father — later returned to UK with children and while there, told father they would be returning to NZ — whether father consented or acquiesced to children remaining in NZ by failing to stop the second removal — whether the children were habitually resident in NZ as had been in NZ for some time — whether an order should be refused under s106(1)(a) COCA (application was made more than 1 year after the removal of the child, and the child is now settled in the new environment) and s106(b)(ii) (consented to, or later acquiesced in, the removal) — whether there could be a wrongful retention because when the appellant informed the respondent they would not be returning to the UK, the children were not in NZ — definition of “removal”, “retention”, “habitual residence” and “acquiesce”.

Held: The issues on appeal were: whether there could be a wrongful retention because the children were outside of NZ when the mother “retained” them; whether the father had consented or acquiesced by not taking steps to prevent their removal the second time they left the UK; and whether the children's habitual residence had changed to NZ.

Re H and Re S made it clear that both removal and retention within the meaning of the Hague Convention were events occurring on a specific occasion, rather than a continuing state of affairs. As such, they were mutually exclusive concepts. Removal and retention meant removal from, or retention out of the jurisdiction of the courts of the state of a child's habitual residence. Removal occurred when the child was taken away from that state with consent and retention occurred where a child was outside the state of habitual residence with consent but not returned on the expiry of a limited time period.

The mother's repudiation of the agreement of January 2010 was, for the purposes of the limitation period in the COCA, the date of the wrongful retention. If the mother's argument was correct, the logical difficulty was that wrongful retention might not necessarily arise when there was an anticipatory breach of an agreement which occurred inside the original state of residence. For the purpose of the Hague Convention and limitation period, logically a child could not be “retained” when, at the time of the breach, they were in the state of their habitual residence. The communication of the intent not to honour the agreement for later return was the date of “retention”. That was a legal fiction arising out of the necessity of application of the concept of anticipatory breach if, at the time of the communication to dishonour the agreement, the children were not in NZ.

It could be that the communication to retain was an anticipatory breach of a retention only when it was “perfected” by the act of travelling to NZ with that intention. So the event which resulted in wrongful retention was the arrival in NZ, the anticipatory breach having been intended and conveyed. Or it may well be that the departure itself was a wrongful removal. Whatever label was attached to the actions of the mother, they were wrongful unless the father had consented.

For Hague Convention purposes and the limitation period, it was the separate act of removal of the children from the United Kingdom in June 2011 that was a wrongful removal. The first removal, pursuant to the mediated agreement, was not wrongful. The second removal was wrongful, unless the father consented or acquiesced, by doing nothing to stop them from leaving. However that did not accord with the facts. On the mother's unequivocal repudiation, the father was entitled to insist on compliance with the agreement or to cancel it. If he did, the rights that the mother had under it no longer existed. The father did not have to immediately accept the mother's repudiation and was entitled, if he wished, to wait until the agreed time limit had expired or he could choose, as he eventually did, on 31 August 2011, to assert his rights based upon the anticipatory breach or repudiation of the essential term in the agreement.

The mother had removed the children from the UK by returning them to NZ when she did not intend to abide by the earlier agreement by which she had been permitted to retain them. But for the agreement, she had no right to keep the children in NZ. Acceptance of the mother's argument would enable the “possessing” parent to time their anticipatory repudiation of the agreement (by which they had been permitted to remove the children and/or retain them outside their habitual residence) with the effect that the wronged parent would be deprived of their rights. Hague Convention rules and principles must apply, unless the children were not then “habitually resident” in the UK, and unless the father consented or acquiesced.

There was no definition of habitual residence in the COCA or Hague Convention; the question was to be decided by reference to the circumstances of each case. The unilateral purpose of one parent did not change the habitual residence of a child, because to hold otherwise would go against the policy of the Hague Convention and provide encouragement for abduction and retention. But a very lengthy period of residence, even in such a situation, might eventually change a child's habitual residence. A length of stay in the country to which a child was taken was a factor to take into account, but only one factor, along with the purpose of the stay and strength of ties to the existing state.

The children had left the UK for a specific period (18 months). There was no agreement that their habitual residence was to be abandoned, and it was not. Duration of residence in determining habitual place of residence was one of many factors to consider. The totality of the circumstances and evidence established that the habitual residence of the boys had not changed from the UK to NZ at the time of the anticipatory breach. The father had made it clear that the children were to return after the defined period.

The removal for Convention purposes occurred when the child was taken across the frontier of his state of habitual residence. In this case it occurred, through the anticipatory breach of the refusal to return at the agreed time and through the wrongful removal of the children on 16 June 2011. Because wrongful retention under the Hague Convention was not a continuing state of affairs, if a child was wrongfully removed but then returned, even for a very short period of time to its state of habitual residence, any subsequent removal was a new “wrongful removal” and the time, for the purposes of the Article, started to run from the date of the new removal.

Acquiescence was a question of the actual subjective intention of the wronged parent. The father had not acquiesced or consented to the children remaining permanently in NZ. Inaction by the father in the circumstances of this case through not taking steps to stop the mother returning with the children to NZ amounted to acquiescence.

Appeal dismissed. The children's habitual residence was the UK and they must be returned.





Applicable legislation


The Family Court Judge's decision


The appeal to this Court


Was there an agreement that the mother would return the children to the United Kingdom?


No wrongful retention in New Zealand on 12 June 2011


Removal and retention


Anticipatory breach


Consequence of anticipatory breach


Counsel's claim of factual error by the Family Court Judge


The children's habitual residence on 12 June 2011


Did the father acquiesce or consent?





This is an appeal against a decision of District Court Judge S J Coyle in the Family Court at Queenstown (heard at Alexandra) ordering that the two children of the appellant and respondent be returned to the United Kingdom pursuant to s 105 of the Care of Children Act 2004 (the Act) and the Hague Convention.


The parties (to be described as mother and father) are the parents of two boys born in the United Kingdom on 31 May 2006 and 4 November 2007. They were aged five and four at the time of the hearing in the Family Court. The parents were originally from New Zealand and moved to live in the United Kingdom in mid 2001, and were married in August 2002. The marriage broke down and the parties were divorced on 23 March 2010.


On 14 May 2010, the parents, in the course of mediation, reached an agreement relating to custody and care of the children in the United Kingdom, but as part of which agreed that the mother could make a trip to New Zealand via South Africa from August 2010, to return to the United Kingdom in March 2011. It was agreed that then the children would be in the care of each of the parents on a shared and equal basis. Consequently on 28 August 2010, the mother left the United Kingdom with the children and arrived in New Zealand.


Within three weeks, the mother advised the father that she would not be returning to the United Kingdom....

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1 cases
  • Re C (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 July 2017
    ...had been disclosed and there was no intention of retaining the children in New Zealand if that custody order had been refused." RCL v APBL [2012] NZHC 1292 76 In RCL v APBL, the family lived in the UK. The parents agreed that the mother could make a trip with the children to New Zea......

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