The proceedings concerned children, both boys, born in the United Kingdom on 31 May 2006 and 4 November 2007. The parents, both originally from New Zealand, had relocated to the United Kingdom in mid 2001, and had married in August 2002. The parents divorced on 23 March 2010.
In May 2010, following mediation, the parents agreed to share equal care of the children in the United Kingdom. As part of this agreement, the mother was to make an extended trip to New Zealand, via South Africa, with the boys. This was to last from August 2010 until March 2011.
Three weeks into the trip, the mother advised the father that she would not be returning. The father did not agree to the children staying in New Zealand. The mother advised that the father could collect and bring the children back in March 2011.
In January 2011, the parents agreed that the children could remain in New Zealand until the younger boy was due to start school in November 2012. Thereafter the boys would live in the United Kingdom. The father visited the children in late February / early March 2011.
In late May, the mother took the children to the United Kingdom for an 18-day vacation. On 12 June, the mother advised the father that she would never return the children. Mother and children went back to New Zealand on 16 June. The father filed an application with the United Kingdom Central Authority for the return of the children on 31 August 2011.
On 14 November 2011, the father’s return application was filed in the Family Court in Queenstown. On 1 March 2012, the Family Court at Queenstown ordered the return of the children. The Family Court found that a wrongful retention had first occurred as a consequence of the initial decision of the mother in September 2010 that she and the boys would not be returning to the United Kingdom.
The Count found that that wrongful removal had been “cured” by the subsequent agreement on 9 January 2011 that the children could further remain in New Zealand until the autumn of 2012. The Court subsequently found there to have been an anticipatory breach of the varied agreement leading to a wrongful retention on 12 June 2011.
The Court found none of the exceptions of the Hague Child Abduction Convention to be applicable. The mother appealed.