TD v MT (Rights of Custody after Lawful Removal) [2026] EWHC 952 (Fam)

[2026] EWHC 952 (Fam)Case No FD25P00805
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/04/2026
Before
MR JUSTICE MACDONALD
Between
TDApplicantMTRespondent
Ms Alexandra Halliday (instructed by Walker Family Law) for ApplicantMr Jay Banerji and Mr Joseph Landman (instructed by Goodman Ray) for RespondentHearing Hearing dates: 20 March 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 28 April 2026 by circulation to the parties or their representatives by e-mail..............................MR JUSTICE MACDONALD
[1]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”).[2]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.[3]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.[4]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.[5]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.

BACKGROUND

[6]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.[7]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: i) The Parenting Plan provides at paragraph C2.1 that “Both parties shall retain full parental responsibilities and rights with regard to the care of the minor child, X, as contemplated in section 18(2)(a) of the Children’s Act 38 of 2005.” ii) The Parenting Plan provides at paragraph C2.2 that “the primary care and residence of X is with [the mother].” iii) The Parenting Plan provides at paragraph C2.3 that the specific parental responsibilities and rights with regards to contact, as contemplated by section 18(2)(b) of the Children’s Act 38 of 2005 is with the father. iv) The Parenting Plan provides at paragraph C 5.1 that the father shall pay maintenance in respect of X at the rate of R5000 per month and 50% of any unplanned expenses.[8]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]”.[9]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.[10]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.[11]The order of 25 October 2024 also provided as follows regarding the father’s obligations to maintain X:
“[7] The [father’s] obligation to maintain X as provided for in the Parenting Plan is suspended in toto on condition that the [father] is entitled to create a savings fund in South Africa of his own choice so as to enable him to maintain contact with X as provided for in Annexure A.”
[12]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:
“I want to address the matter of child maintenance and provide clarity going forward. In your own sworn court documents filed in South Africa, you expressly stated that I am relieved of all maintenance obligations in total and that I may instead allocate those funds towards travel to the UK to maintain a relationship with X. Based on this, and on the legal position you have already put on record, I will be following that arrangement exacted as you proposed. Additionally, my legal team in South Africa has advised that I have no current obligation to pay child maintenance under the circumstances, especially given the ongoing jurisdictional issues and the fact that I receive no information whatsoever relating to X’s care, wellbeing, medical records, education or day-to-day situation. This complete lack of transparency makes it impossible to meaningfully contribute or participate in shared parental responsibilities.”
[13]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.[14]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.[15]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.[16]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.[17]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.[18]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.”[19]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.[20]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.[21]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:
“I have rights of custody by virtue of being named as X’s father on the South African birth certificate. Whilst the Relocation Order of 25 October 2025 temporarily suspended a limited aspect of my Rights of Custody, in that it permitted [the mother] to relocate and apply for visa without my consent, that position was suspended upon my appeal application being lodged on 1 November 2024. [The mother’s] actions in applying for a UK visa for X in November 2024 was in breach of my Rights of Custody at that time. The Relocation Order came back into effect on 10 February 2025 and [the mother’s] removal of X was technically not unlawful, however it became unlawful upon my further appeal being lodged on 18 February 2025. X’s ongoing retention in England is in breach of my Rights of Custody.”
[22]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: i) The filing of an appeal with the South African Supreme Court of Appeals suspends the operation and execution of a relocation order pursuant to the section 18(1) and (5) of the Supreme Courts Act 10 of 2013 from the date of filing, in this case from 17 February 2025. ii) In circumstances where section 18(1) of the Supreme Courts Act 10 of 2013 provides that the operation and execution of a decision which is the subject of an application for leave to appeal or an appeal is suspended pending the decision on the application or the appeal, the suspension of the order operates prospectively and not retrospectively from the date of filing. iii) However, having regard to the decision of the Supreme Court of Appeals in NS v JN 2022 JDR 2646 and Arise Business Solutions (Pty) Ltd v The Sheriff (Central Johannesburg) 2018 JDR 2192, and logically, it appears clear that the operation and execution of an order that has already been executed cannot be suspended. iv) Any suspension of the operation and execution of the relocation order did not trigger a requirement for the father’s consent to the retention of X in the United Kingdom to be obtained. v) There is no provision in the relocation order that required the father’s consent to the future retention by the mother of X in England in circumstances where the operation and execution of the location order were suspended. Paragraph 2 of the relocation order envisaged and provided for a single positive act of relocation from South Africa to the United Kingdom. It dispensed with the consent of the father ordinarily required by section 18(5) of the Children’s Act 38 of 2005. The mother moved with X to the United Kingdom on 10 February 2025, implementing and giving effect to paragraph 2 of the order. There is no reference in the relocation order to the retention of a minor child or children outside of the borders of South Africa once such child has been removed from South Africa. vi) There is no provision under South African law that required, by operation of law, the father’s consent to the future retention by the mother of X in England in circumstances where the operation and execution of the location order were suspended. There is no reference in section 18 of the Children’s Act 38 of 2005 to the retention of a minor child or children outside of the borders of South Africa once such child has been removed from South Africa. vii) The suspension of the operation and execution of the relocation order did not impose any positive obligation on the mother to return X to South Africa. viii) Neither the relocation order nor the filing of the application for permission to appeal would axiomatically require the mother to take the positive act of returning X to South Africa following the filing of permission to appeal. The legal effect of the filing of the application for permission to appeal merely suspended the future operation and execution of the relocation order. ix) This conclusion is reinforced by the decisions of the Supreme Court of Appeals in NS v JN 2022 JDR 2646, in which the court held that an appeal resulting in the revival of an order prohibiting the removal of a child from South Africa after such removal had occurred could have no practical effect as the order had already been executed. x) In circumstances where the Supreme Court of Appeals has granted permission to appeal, each party was entitled on the appeal to present to the court, and the court was obliged to receive and consider any and all representations, evidence and/or argument pertaining to the best interests of X, including in relation to those factors, facts and circumstances set out in section 7 of the Children’s Act 38 of 2005.

RELEVANT LAW

[23]Art 3 of the 1980 Hague Convention stipulates that a removal or retention of a child will be wrongful in the following circumstances:
“Article 3 The removal or the retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
The removal or the retention of a child is to be considered wrongful where -

Retention

[24]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?[25]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:
“...one parent will have travelled with the child from the State of habitual residence to the destination State, for example for an agreed fortnight’s holiday (and thus without the removal being wrongful), but will then wrongfully have refused to return.”
[26]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:
“It must, however, be necessary to point specifically to the event which constitutes the removal or retention. This is necessarily so because of the provisions of Art 12 that for an order for the return of the child to be made at the date of the commencement of the proceedings, a period of less than one year has elapsed ‘from the date’ of the wrongful removal or retention”
.

Rights of Custody

[27]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:
"Article 5 For the purposes of this Convention – (a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; .../"
[28]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 :
"[46] There is no longer any doubt as to the approach that a court should adopt when determining whether the removal or retention of a child is wrongful within the meaning of Art 3. As Ward LJ said in Re V-B (Abduction: Custody Rights) [1999] 2 FLR 192 , at 196B, the first task is to establish what rights, if any, the applicant had under the law of the State in which the child was habitually resident immediately before his or her removal or retention. I shall refer to this as 'the domestic law question'. This question is determined in accordance with the domestic law of that State. It involves deciding what rights are recognised by that law, not how those rights are characterised. As Lord Donaldson of Lymington MR said in C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, [1989] 1 FLR 403 , at 663F and 413 respectively: 'it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the Convention definition of "rights of custody"
'. To similar effect, Millett LJ said in Re F (P Minor) (Child Abduction: Rights of Custody Abroad) [1995] Fam 224, [1995] 2 FLR 31, at 235 and 40F respectively, that the Colorado lawyers should not have been asked 'whether the appellant's conduct in removing the child from Colorado was wrongful by the law of Colorado, whether at the time of the child's removal the respondent had what a Colorado court would describe as "rights of custody" or whether the child's removal would be regarded by a Colorado court as being in breach of those rights'. The only question which the Colorado lawyers should have been asked was what rights, if any, were possessed by the applicant in relation to the child at the time of his removal from Colorado. [47] The next question is whether those rights are properly to be characterised as 'rights of custody' within the meaning of Arts 3 and 5(b) of the Hague Convention. I shall refer to this as 'the Convention question'. This is a matter of international law and depends on the application of the autonomous meaning of the phrase 'rights of custody'. Where, as in the present case, an application is made in the courts of England and Wales, the autonomous meaning is determined in accordance with English law as the law of the court whose jurisdiction has been invoked under the Convention. But as Lord Browne-Wilkinson said in Re H (Abduction: Acquiescence) [1998] AC 72, [1997] 1 FLR 872 , at 87F and 882 respectively, the Hague Convention cannot be construed differently in different jurisdictions: it must have the same meaning and effect under the laws of all Contracting States. In R v Secretary of State for the Home Department ex parte Adan; R v Same ex parte Subaskaran; R v Same ex parte Aitseguer [2001] 2 AC 477, [2001] INLR 44, at 517 and 56 respectively, when referring to the meaning of the United Nations Convention Relating to the Status of Refugees 1951 and Protocol of 1967, Lord Steyn said: 'In practice it is left to national courts, faced with material disagreement on an issue of interpretation, to resolve it. But in so doing it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.'"[29]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.[30]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).[31]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).[32]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: i) The lawful removal by one parent of a child from the jurisdiction of their habitual residence does not act to destroy the rights of custody of the other parent. The parent will continue to enjoy rights of custody subject to the effect of the instrument or agreement permitting the lawful removal of the child from the jurisdiction (see Re F (A Minor)(Abduction: Custody Rights Abroad) [1995] Fam 224 sub nom Re F (Child Abduction: Risk if Returned) [1995] 2 FLR 31). ii) A right to veto the removal of a child to another jurisdiction, and determine a child’s place of residence also amounts to a ‘right of custody’ under the 1980 Hague Convention (Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619). iii) The right to apply for a court order does not amount to a right of custody (see Re D (A Child) (Abduction: Rights of Custody)). iv) Even extensive rights of access do not amount to rights of custody, notwithstanding that an international move may impede effective access rights. Overnight stays are not sufficient to create a right of custody under the convention (see Hunter v Murrow (Abduction: Rights of Custody)).[33]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:
“In my view, Art 3(b) must be construed widely as meaning that the custodial parent must be maintaining the stance and attitude of such a parent, rather than narrowly as meaning that he or she must be continuing to exercise day-to-day care and control. If the narrow meaning was adopted, it could be said that a custodial parent was not actually exercising his or her custodial rights during a period of lawful staying access with the non-custodial parent. That, as it seems to me, cannot be right.”

DISCUSSION

[34]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.

Retention

[35]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.[36]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)).[37]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.[38]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)).[39]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).[40]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: i) The suspension of the relocation order was prospective and could not therefore render unlawful the mother’s lawful prior move to England with X pursuant to that order. ii) The suspension of the relocation order was a procedural step and did not itself trigger any legal requirement for X’s return to South Africa or for the father’s consent to be obtained to X remaining in England pending the determination of his appeal. iii) There are no terms in the relocation order regulating the position of X once she has been removed from South Africa. In particular, there is no provision in the order requiring X’s return to South Africa in the event that the operation of the order is suspended at a point after her relocation or requiring the father’s consent to X remaining in England pending the determination of any appeal. iv) There is no provision in section 18 of the Children’s Act 38 of 2005 that requires, by operation of South African law, that X return to South Africa in the event that the operation of the order is suspended at a point after her relocation or requires the father’s consent be obtained to X remaining in England pending the determination of his appeal.[41]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.[42]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.

Exercise of Rights of Custody

[43]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[44]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.[45]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).[46]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.[47]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)).[48]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.[49]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.[50]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.[51]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.[52]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.[53]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.[54]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.[55]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.[56]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.

CONCLUSION

[57]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.[58]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.[59]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:
“[21] I start with the obvious point that Hague proceedings are, of their very nature, summary. Indeed, they are required by the Convention and the relevant jurisprudence to be determined within six weeks, a much shorter timescale than most cases involving children. As Mr Harrison puts it, the issue therefore is when, if at all, the court should deal with Hague proceedings in a manner which is not merely “summary” but “ultra-summary”
. The answer, surely, is “not very often”. I bear in mind also that Hague proceeding are sui generis and that we must be cautious before applying too uncritically purely domestic approaches to what are, after all, international cases governed by an international Convention. [22] It is convenient to consider first Baker J’s judgment in In re W. I have no doubt that Baker J was entirely right to decide the case as he did and for the reasons he gave. Where, as there, the basis for the attempt to abbreviate an already summary process was an argument going to the merits (or, more precisely, the asserted demerits of the other party’s case) the short point, as Baker J explained, is that, save perhaps in an exceptional case, such arguments are properly to be dealt with as part of the substantive hearing and not by way of preliminary point. Preliminary points here, as in other jurisdictions, have an unfortunate tendency, unless kept under strict control, to cause the very delay which it is their object to avoid. I would expect cases in which it can be appropriate to follow the course adopted by Connell J in In re G to be most unusual and very rare. As Baker J commented, 20 years had elapsed before the point next arose in In re W. [23] I equally have no doubt that Holman J was entirely right to decide AF v HS as he did and for the reasons he gave. That was not a case where the basis of the application was a challenge going to the intrinsic merits of the Hague proceedings. It was, like the one before me, a case where the Hague proceedings had been overtaken by subsequent events—a change in the family’s circumstances or developments in the foreign court—the effect of which was to deprive the Hague proceedings of any continuing utility and to make it unnecessary and inappropriate to allow the proceedings to continue in circumstances where there was no obvious benefit either to the parents or to the children in carrying on. In such a case, in my judgment, the court undoubtedly has power, applying the principles in In re C, to bring the proceedings to a premature conclusion. In the nature of things, I would expect such cases to arise only infrequently. The vast bulk of Hague cases will—must—continue to a substantive hearing in the usual way. [24] In the present case, the father sought, and was given, permission to withdraw the Hague proceedings. Had he not sought permission to do so, I would, and essentially for the same reasons as commended themselves to Holman J in AF v HS, have made the order sought by Mr Bennett summarily dismissing the proceedings. [25] In his helpful submissions, Mr Harrison drew attention to the requirement to give the child the opportunity to be heard in Hague proceedings: see In re D (A Child) (Abduction: Custody Rights) [2006] UKHL 51; [2007] 1 AC 619. That does not mean, in my judgment, that the court is disabled, in an appropriate case, from summarily disposing of the proceedings, without making a substantive order, just because the child has not been heard. After all, I did not hear from the children before making the order agreed between Mr Harrison and Mr Bennett, nor, I should point out, did Mr Harrison ever suggest that I should. [26] I add three further observations. First, there is pressing need in the context of Hague proceedings to avoid satellite litigation and the inevitable over-elaborate and ever-elaborating jurisprudence which always accompanies it. Secondly, I would strongly deprecate any attempt to create a taxonomy distinguishing between, if I may be permitted to use the expressions, a Baker type case and a Holman-type case: compare what I said in In re F (Relocation) [2012] EWCA Civ 1364; [2013] 1 FLR 645, paras 58, 60. Thirdly, and to emphasise points I have already made, the circumstances in which the court can properly adopt an “ultra-summary” approach in Hague cases are very limited and the cases in which it can ever be appropriate to do so are likely to be very few and far between.”