TD v MT (Rights of Custody after Lawful Removal)

This is an application under the Child Abduction and Custody Act 1985 for a return order pursuant to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereafter “the 1980 Hague Convention”) in respect of X, who is now aged nearly 4 years old. X’s father is the applicant, TD (hereafter, “the father”). The respondent to the application is X’s mother, MT (hereafter “the mother”).

The preliminary issue before the court is whether the father had attributed to him rights of custody and, if so, was actually exercising those rights of custody for the purposes of Art 3 of the 1980 Hague Convention at the relevant date. As I identify below, there is in fact an antecedent question. Namely, whether there was an act of “retention” in this case for the purposes of Art 3. These issues arise for determination by way of a C2 application of the mother dated 9 January 2026 seeking the “summary dismissal” of the father’s application, relying on Re D (Child Abduction: Practice) [2016] EWHC 504 (Fam), [2016] 4 WLR 62.

The father contends that he had attributed to him rights of custody and was actually exercising those rights at the relevant date. The mother contends that, by virtue of an order of the South African court permitting the mother to remove X from that jurisdiction, the father did not have attributed to him rights of custody or, if he did, he was not actually exercising those rights at the relevant date. On 15 August 2025 the mother issued proceedings in the Family Court sitting at Derby. Those proceedings have now been stayed pending the determination of the father’s application under the 1980 Hague Convention.

In determining the preliminary issues, I have read and considered all of the documents in the court bundle. In particular, the court bundle contains the expert report of Ms Steven Merchak, the single joint expert instructed to provide an opinion on South African law. Neither party sought to challenge the contents of Mr Merchak’s report and he did not give oral evidence. In addition, I have had the benefit of comprehensive and erudite Skeleton Arguments from Ms Alexandra Halliday of counsel on behalf of the father and from Mr Jay Banerji and Mr Joseph Landman of counsel on behalf of the mother. Mr Banerji and Mr Landman, and their instructing solicitor, Mr Kevin Skinner, act for the mother pro bono in the best traditions of the legal professions. I also have the benefit of an agreed bundle of authorities.

In light of the nature and complexity of the legal issues in this case, I reserved judgment and now set out my decision and my reasons for it.

For the purposes of determining the question of whether the father had attributed to him rights of custody and, if so, was actually exercising those rights of custody on the relevant date for the purposes of Art 3 of the 1980 Hague Convention, the background can be stated relatively shortly.

The father is a dual South African and French citizen by descent. The mother is a dual South African and British citizen. The parties met in June 2021. They were engaged to be married, but separated in November 2022, following X’s birth in South Africa in mid-2022. The mother contends that she was the primary carer for X. Following X’s birth, proceedings were commenced in the Children’s Court in Pretoria. During the course of those proceedings, the parents agreed a Parenting Plan dated 29 June 2023. The following points in the Parenting Plan are of note:

The first set of South African proceedings in relation to X culminated in a final order dated 8 October 2024. That order contained a provision at paragraph 1 that provided “Both parties remain co-holders of parental rights and responsibilities for [X]”.

The mother asserts that the father always knew that it was her intention to return to the United Kingdom in circumstances where she is a British Citizen, has family in England and considered that there were good opportunities for her in this country. The father denies this. On 8 August 2024, nearly two years after the mother had broken off her engagement with the father, the mother applied for a job in England. She received an offer of employment on 23 August 2024 and signed a contract of employment on 4 September 2024, with a start date in the United Kingdom of 19 November 2024. In consequence, the mother applied to the High Court in Pretoria for permission to remove X permanently from the jurisdiction South Africa.

The father opposed the mother’s application. On 25 October 2024, Madam Justice Mokose granted an order permitting the mother to relocate X to the jurisdiction of England and Wales and to apply for a UK settlement visa for X without the consent of the father, pursuant to s.18(3)(c)(iii) and (iv) of the Children’s Act 38 of 2005 as amended. The mother consulted an emigration expert on 29 October 2024.

The order of 25 October 2024 also provided as follows regarding the father’s obligations to maintain X:

I pause to note that, in the context of the foregoing provision, on 28 November 2025 the father emailed the mother in the following terms:

On 1 November 2024, the father filed a notice of application for permission to appeal against the order permitting the mother to relocate X to the jurisdiction of England and Wales. It is agreed between the parties that the father’s application for permission to appeal acted automatically to suspend the operation of the relocation order.

On 7 November 2024, the mother submitted an application for a United Kingdom visa for X. That application was received by the Home Office on 13 November 2024 and a visa was issued to X on 17 December 2024. The father contends that the mother undertook the foregoing steps “without lawful authority” and at no time informed the United Kingdom immigration authorities that she was relying on a relocation order that was suspended pending appeal. The jointly instructed expert on South African law was not instructed to opine on whether the mother’s actions in respect of obtaining a visa for X during the pendency of the suspension of the relocation order was unlawful and I make no findings in that regard.

The father’s application for permission to appeal against the relocation order was dismissed by the Madam Justice Mokose on 10 February 2025. The High Court delivered its judgment at 11.30am on that date. Some seven hours later, and without communicating further with the father, the mother departed with X to the United Kingdom at approximately 6.30pm. The father had not by that time sought interim relief or lodged an appeal with the Supreme Court of Appeal. However, prior to the mother’s departure with X, the father’s lawyers had communicated to the mother’s legal team the father’s intention to lodge an appeal.

In his second statement, and in circumstances where the South African relocation order was in effect at the time the mother departed South Africa with X, the father concedes that the mother’s removal of X from the jurisdiction of South Africa on 10 February 2025 was lawful.

The father filed his application for permission to appeal to the Supreme Court of Appeal on 17 February 2025. The filing of the appeal again operated to suspend the operation of the relocation order.

As I have noted, on 15 August 2025 the mother issued proceedings in the Family Court sitting at Derby. On that date, the court made a declaration that X was habitually resident in England and Wales. The court also made what was expressed in the recitals to be a final order that X would live with the mother, leaving only the question of the nature and extent of the time X would spend with her father as the welfare issue in dispute. The father states that his agreement to the terms of this order was simply a reflection of the position that actually pertained both in South Africa prior to X’s removal. He relies on the fact that the order does not state that X shall live with her mother in England. The father had interim contact with X in this jurisdiction from 16 to 20 August 2025. There was an effective FHDRA on 13 November 2025 at which the court ordered a report from Cafcass pursuant to s.7 of the 1989 Act on the question of contact. The recitals to the order of 15 August 2025 record that “the parties share joint and equal parental responsibility for the child.”

The father’s appeal to the South African Supreme Court of Appeal was accepted for hearing and certified as urgent. It was heard on 12 November 2025 and judgment is awaited. The mother contends that during the appeal hearing, the lawyer representing the father indicated to the court that the father was not seeking the return of X to South Africa and that, in consequence, the court requested submissions as to whether the appeal was moot by 12 January 2026. This is denied by the father. The father contends that the appeal court noted that a successful appeal would not, of itself, secure X’s return to the jurisdiction of South Africa and that to achieve that outcome an application would need to be made under the 1980 Hague Convention for a return order. The father contends that this was the reason for the Supreme Court of Appeals requesting submissions on the question of whether the appeal was now academic.

The father issued his application under the 1980 Hague Convention on 12 December 2025. The father’s C67 application for a return order makes no reference to the relocation order granted by the South African court. Nor does the C67 application lodged by the father mention the final lives with child arrangements order made by the Family Court sitting in Derby, referring to that order as interim. In his statement of support filed with his C67 application, the father alleged that the mother had wrongfully removedX on 10 February 2025 and thereafter wrongfully retained her.

At this hearing the father has contended that on 17 February 2025, the date on which he filed his application for permission to appeal to the Supreme Court of Appeals, the mother wrongfully retained X in the jurisdiction of England and Wales in circumstances where the mother was neither in receipt the father’s consent or the permission of the South African court, the relocation order having been suspended. In his statement of 23 January 2026, the father puts his case as follows:

The court has the benefit of a jointly instructed expert report and a supplementary report on South African law from Mr Steven Merchak. Mr Merchak is a South African Attorney who has practiced in family law in South Africa for 25 years. The contents of his report and his addendum report are not disputed by the parties. The following salient points arise from them:

Art 3 of the 1980 Hague Convention stipulates that a removal or retention of a child will be wrongful in the following circumstances:

In this case it was apparent during the course of argument that both the question of whether rights of custody were attributed to the father and the question of whether he was actually exercising any rights of custody attributed to him were in issue in this case. However, having regard to the wording of Art 3 of the 1980 Convention, before the issue of rights of custody is reached there is an antecedent question. Namely, has there been an act of retention per se?

A retention occurs only when a child is lawfully removed from his or her Contracting State of habitual residence and is subsequently retained outside that State contrary to a lawful requirement that the child be returned, for example in the form of a court order or an agreement between the parents (see Re H; Re S (Abduction: Custody Rights) [1991] 2 AC at 499). In Re C (Children)(International Centre for Family Law, Policy and Practice Intervening) [2018] UKSC 8, [2019] AC 1 at [11], the simple paradigm example of a retention was described as follows:

In determining whether there has been an act of retention for the purposes of Art 3, it is important that the court identifies with clarity the date on which it is alleged that the child was retained (see In Re X (A Child) [2023] 4 WLR 46). Further, an act of retention is a singular event (see Re H (Abduction: Retention in non-Contracting State) [2019] EWCA Civ 672, [2020] Fam 375) and not a ‘continuing event’ for the purpose of any 1980 Hague Convention analysis (Re H; Re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476). As such, an applicant must be able to demonstrate an event occurring on a specific occasion that constitutes the act of retention. In Re S (A Minor)(Custody: Habitual Residence) [1998] AC 750, Lord Slynn said at 767:

Turning to the principles governing rights of custody, and dealing first with the existence of rights of custody, Art 5(a) of the 1980 Hague Convention provides as follows:

When the English court is faced with determining whether rights of custody existed at the time of the act of retention, an important distinction must be drawn between the question of what rights, if any, a parent has under the domestic law of the requesting State, in this case South Africa, and the question of whether those rights amount to rights of custody for the purposes of the 1980 Convention. Dyson LJ (as he then was) drew the following distinction in Hunter v Murrow (Abduction: Rights of Custody) [2005] 2 FLR 1119 :

Thus, a dispute regarding the first question of what rights the left behind parent had under the law of the requesting State (the "domestic law" question) falls to be determined in this case by reference to the law of that requesting State, in this case South Africa, ordinarily with the assistance of expert evidence. The questions asked of the expert in South African law in this case go to this first question.

By contrast, a dispute as to the second question of whether those rights under the domestic law of the requesting State amount to rights of custody for the purposes of the 1980 Convention (the "Convention" question) falls to be determined by reference to the law of the requested State, in this case the United Kingdom. At this second stage, it is important to remember that the term 'rights of custody' falls to be given its autonomous meaning under the 1980 Convention and, thus, must be interpreted and applied uniformly by signatory states (see C v C (Abduction: Rights of Custody) [1989] 1 WLR 654).

In determining the second question, the Court of Appeal has emphasised the need for the Convention to be construed widely. In Re B (A Minor)(Abduction) [1994] 2 FLR 249, Waite LJ held that the “Convention is to be construed broadly as an international agreement according to its general tenor and purpose.” In Re F (A Minor)(Abduction: Custody Rights Abroad) [1995] Fam 224 sub nom Re F (Child Abduction: Risk if Returned) [1995] 2 FLR 31, Butler-Sloss LJ (as she then was) observed that “It is the duty of the court to construe the Convention in a purposive way and to make the Convention work” (but see also the decision of the Court of Appeal and the binding decision of the House of Lords in Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562 which held that rights of custody are confined solely to legal rights).

In these circumstances, the following conclusions drawn by the courts in this jurisdiction are pertinent when examining whether the rights the father had under South African law, in the context of the suspension of the relocation order pending the determination of his application for permission to appeal, amount to rights of custody attributed to the father for the purposes of Art 3 of the 1980 Hague Convention:

Finally, if the rights of the father under South African law in the context of the suspension of the relocation order pending the determination of his application for permission to appeal amounted to rights of custody for the purposes of Art 3 of the 1980 Hague Convention, the court also needs to determine whether he was actually exercising those rights of custody immediately prior to X being retained. In Re H (Minors)(Abduction: Custody Rights); Re S (Minors)(Abduction: Custody Rights) [1991] 2 AC 476, Lord Brandon held that:

Having considered carefully the submissions of counsel in this matter, I am satisfied that there was no act of retention on 17 February 2025 for the purposes of Art 3 of the 1980 Hague Convention. If I am mistaken in that conclusion, I am in any event satisfied that as at 17 February 2025 the father did not have attributed to him rights of custody and that, accordingly, any retention was not wrongful for the purposes of Art 3 of the 1980 Hague Convention. My reasons for so deciding are as follows.

With respect to the antecedent question of whether X was the subject of an act of retention within the meaning of Art 3, I am satisfied that the mother did not act to retain X in England on 17 February 2025 for the purposes of the 1980 Hague Convention.

A retention occurs only when a child is lawfully removed from his or her Contracting State of habitual residence and is subsequently retained outside that State contrary to a lawful requirement that the child return (Re H; Re S (Abduction: Custody Rights)).

The father concedes that X’s removal from South Africa was lawful. This flows from the fact that, following the father’s unsuccessful application to Madam Justice Mokose for permission to appeal, the judge’s order of 25 October 2024 permitting the mother to relocate X to the jurisdiction of England and Wales was operational at the point the mother departed for England with X on 17 February 2025.

The authorities set out above make clear that, in order to be satisfied that there has been an act of retention in respect of X for the purposes of the 1980 Hague Convention, the court needs to identify with clarity the date on which it is alleged that the mother acted to retain X (In Re X (A Child)); that X was retained contrary to a lawful requirement that she return to South Africa (Re H; Re S (Abduction: Custody Rights));and that a specific event occurred on a specific occasion that constituted the mother’s act of retention (Re S (A Minor)(Custody: Habitual Residence)).

On the father’s case, the date of retention is 17 February 2025, being the date on which he lodged his application for permission to appeal to the Supreme Court of Appeals, which in turn acted to suspend the operation of the order granting the mother permission to remove X (albeit that the expert points to the authorities NS v JN 2022 JDR 2646 and Arise Business Solutions (Pty) Ltd v The Sheriff (Central Johannesburg) 2018 JDR 2192 that suggest that the operation and execution of an order that has already been executed cannot be suspended).

Assuming for the present purposes that the application for permission to appeal did suspend the operation of the order permitting the mother to remove X from South Africa from 17 February 2025, the expert evidence before the court is clear that:

An act of retention crystallises at the point where the continued absence of the child from the requesting State becomes legally impermissible. On the unchallenged expert evidence before the court, the procedural stay consequent on the father’s application for permission to appeal did not render unlawful the mother’s lawful relocation to England with X. That procedural step did not itself trigger any legal requirement for X’s return to South Africa. The relocation order did not require X’s return to South Africa in the event that the operation of the order was suspended. Nor did any provision of South African law. In these circumstances, having been brought by the mother to England lawfully pursuant to the relocation order, there is no evidence before the court that following the lodging of the father’s appeal on 17 February 2025 X’s became the subject of a lawful requirement to return her to South Africa. Further, it follows from this that the mother was not required to take any action in respect of X consequent upon the father filing his application for permission to appeal and did not do so. Accordingly, the father cannot demonstrate a singular event on a specific occasion by which the mother acted to retain X in England on 17 February 2025.

In these circumstances (and independent on the question of the existence and exercise of the father’s rights of custody), I am satisfied on the evidence before the court that there has not been in this case an act of “retention of a child” for the purposes of Art 3. In such circumstances, I must conclude that the father’s application does not fall within the scope of the 1980 Hague Convention.

If I am mistaken in that conclusion, I am in any event satisfied that the father did not have attributed to him rights of custody as at 17 February 2025 and that, accordingly, any retention was not wrongful for the purposes of Art 3 of the 1980 Hague Convention

As made clear by the Court of Appeal in Hunter v Murrow (Abduction: Rights of Custody), when considering whether the father had attributed to him rights of custody on 17 February 2025, the first task of the court is to establish what rights the father had under South African law on that date. On the facts of this case, it is necessary to commence the analysis with the position prior to the making of the relocation order.

Prior to the making of the relocation order, the father contends that he had rights of custody by virtue of being named as X’s father on her South African birth certificate. Whilst that assertion is not dealt with specifically in the expert report, the jointly instructed expert confirms that the Parenting Plan and the order of the Children’s Court in Pretoria dated 29 June 2023 vested both parents with “full parental responsibility and rights” with respect to X, as envisaged by section 18 of the Children’s Act 38 of 2005. The expert confirms that this meant, inter alia, that pursuant to section 18(3) of the Children’s Act, both parents were required to consent to the removal of X from South Africa, albeit that section 18(5) of the Children’s Act provides that the consent of one of the parents may be dispensed with by the court (which is what subsequently happened when the relocation order was made on 25 October 2024).

In his statement, the father concedes that upon the making of the relocation order, his rights of custody were “limited” in circumstances where that order permitted the mother to relocate X and apply for visa without the father’s consent. Further, in addition, the order made by the South African High Court provided that the father’s obligation to maintain X as provided for in the Parenting Plan was suspended “in toto” and the father permitted to create a savings fund in South Africa of his own choice so as to enable him to give effect to his rights of access to X. The father reiterated in the email of 28 November 2025 set out above that he considered himself to be relieved of all maintenance obligations in total and could instead allocate those funds towards to maintain giving effect to his rights of access in respect of X.

In the foregoing circumstances, I am satisfied that, prior to the making of the relocation order, under South African law the father had a right of veto on the removal of X from the jurisdiction of South Africa by way of withholding his required consent to that course of action. As to whether those rights of the father under South African law amounted to rights of custody for the purposes of the 1980 Convention, giving the term 'rights of custody' its autonomous meaning, I am satisfied that they did. Having regard to the express terms of Art 5(a) of the 1980 Hague Convention, the father’s right of veto on the removal of X from the jurisdiction of South Africa by way of withholding his required consent attributed to him rights of custody for the purposes of Art 3 of the 1980 Hague Convention. As I have noted above, under our domestic law a right to veto the removal of a child to another jurisdiction and to determine a child’s place of residence has long been held to amount to a right of custody under the 1980 Hague Convention (Re D (A Child) (Abduction: Rights of Custody)).

Subsequent to the making of the relocation order on 25 October 2024, under South African law the father’s right to veto the removal of X and to determine her place of residence was proscribed by the terms of the relocation order. Further, the remaining provisions of the order were aimed at reinforcing the father’s rights of access by removing his obligation to maintain X in favour of provisions giving effect to his rights of access. By reason of the terms of the relocation order, the father’s right of veto under South African law with respect to X’s removal from South Africa ceased, as did his right under South African to determine where X lived, and his rights of access were bolstered by relieving the father of his obligation to maintain X.

In the foregoing circumstances, I am satisfied that the result of the relocation order made in accordance with South African law was that the father ceased to have attributed to him rights of custody for the purposes of Art 3 of the 1980 Convention. By virtue of the terms of the relocation order, the father was no longer able to deploy his veto over X’s removal from South Africa that, under our domestic law, has been held to amount to a right of custody under the 1980 Hague Convention. In the wording of Art 5(a) of the 1980 Hague Convention, the father also ceased to be able to determine X’s place of residence. Although the terms of the relocation order reinforced the father’s rights of access to X, even extensive rights of access do not amount to rights of custody.

I acknowledge that the Court of Appeal made clear in Re F (A Minor)(Abduction: Custody Rights Abroad) that the lawful removal by one parent of a child from the jurisdiction of their habitual residence, in this case the removal by the mother of X from South Africa pursuant to the relocation order, does not act to destroy the rights of custody of the other parent. However, the Court of Appeal was further clear that the parent’s continuing enjoyment of rights of custody will be expressly subject to the effect of the instrument or agreement permitting the lawful removal of the child. For the reasons set out above, in this case the effect of the terms of the relocation order made in accordance with South African law in this case was that the father ceased to have attributed to him rights of custody for the purposes of Art 3 of the 1980 Convention.

The father’s case is that the suspension of the relocation order made under South African law consequent upon the filing of his application for permission to appeal put him back into the position he was in prior to the court making the relocation order. Namely, that on 17 February 2025 he had once more a right of veto the removal of X from the jurisdiction of South Africa by way of withholding his required consent, which right attributed to him rights of custody for the purposes of Art 3 of the 1980 Hague Convention. Once again, however, I am satisfied that the expert evidence in this case demonstrates that the father’s application for permission to appeal to the Supreme Court of Appeals, whilst acting to suspend the operation of the relocation order made on 25 October 2024, did not act to revivify the father’s rights relating to the “care of the person” of X and, in particular, the right to determine X’s place of residence.

As observed by Lowe and Nicholls in International Movement of Children – Law, Practice and Procedure, 2nd Edn. (2016) at [19.10], the Convention does not work by recognising and enforcing court orders, which are only relevant to the extent that they identify a person, a body or an institution as having rights of custody in respect of the child. Likewise, I am satisfied that a procedural step taken in proceedings, in this case the filing of the father’s application for permission to appeal, will only be relevant in the present context to the extent that that procedural step identifies a person, a body or an institution as having rights of custody in respect of the child.

I acknowledge that the filing of father’s application for permission to appeal suspended the operation of the relocation order that had ceased his right of veto under South African law over X’s removal and his right to determine where X lived. However, as the expert report makes clear, the suspension of the relocation order was prospective. It did not render unlawful the mother’s removal of X to England on 17 February 2025. In these circumstances the fact that the suspension of the relocation order did not by itself confer on the father a right to withhold his consent to X remaining in England pending the determination of his appeal; that the suspension of the relocation order did not itself trigger any legal requirement for X’s return; that there is no provision in the relocation order requiring X’s return in the event that the order is suspended after its execution; and that there is no provision under South African law that requires X return in the event that the order is suspended after its execution, is determinative of the question of whether the stay consequent upon father’s application for permission to appeal operated to place him back in the position he was in prior to the making of the relocation order on 25 October 2024.

If the question before the court was whether, on 17 February 2025, the mother should have removed X from the jurisdiction of South Africa on that date, then the suspension of the relocation order consequent upon the filing of the father’s application for permission to appeal may indeed have been decisive. However, that is not the question before the court. Instead, in circumstances where the suspension was prospective in its operation, the question for the court is whether the father had the right on 17 February 2025, consequent upon the filing of his application for permission to appeal, to veto the mother’s continuing presence in England with X and require her to return X to the jurisdiction of South Africa. The unchallenged expert evidence, which I accept, provides a clear answer in the negative.

Whilst it is the case that from 17 February 2025 the relocation order was suspended, that order had already been executed. As the procedural stay operated prospectively, the removal of X pursuant to that order was lawful. Neither the procedure by which the relocation order was stayed, the terms of the relocation order itself nor any provision of South African law acted to confer on the father the right to veto X’s continued presence in England and the right to determine X’s place of habitual residence by demanding her return pending the determination of the appeal. In these circumstances, the father’s application for permission to appeal, and the procedural stay consequent thereon, did not act to attribute to him rights of custody on 17 February 2025 for the purposes the 1980 Hague Convention. In Re D (A Child)(Abduction: Custody Rights) [2006] UKHL 51, [2007] 1 AC 619, the House of Lords confirmed that the right to apply for a court order, in this case an order giving permission to appeal, does not amount to a right of custody.

In the circumstances, I am in any event satisfied by reference to domestic law principles and the autonomous meaning of the phrase 'rights of custody', that the father did not have attributed to him rights of custody within the meaning of Art 3 of the 1980 Hague Convention as at 17 February 2026.

For the reasons I have given, I am satisfied that there was no act of retention on 17 February 2025 for the purposes of Art 3 of the 1980 Hague Convention. If I am mistaken in that conclusion, I am in any event satisfied that as at 17 February 2025 the father did not have attributed to him rights of custody and that, accordingly, any retention was not wrongful for the purposes of Art 3 of the 1980 Hague Convention. In the circumstances, the father’s application under the 1980 Hague Convention is dismissed. I will ask counsel to draft an order accordingly.

Before leaving this judgment, as I have noted, the listing of the question of the father’s rights of custody as a preliminary issue arises by way of a C2 application of the mother dated 9 January 2026 seeking the “summary dismissal” of the Hague proceedings, relying on Re D (Child Abduction: Practice). In that case, Sir James Munby P made clear that in circumstances where Hague Convention proceedings are, by their very nature, summary, the circumstances in which the court can properly adopt an “ultra summary” approach are very limited.

Whilst, ultimately, the court acceded to that approach in this case, the course remains an exceptional one and the following observations made by Sir James Munby in Re D (Child Abduction: Practice) bear repeating: