The child, a boy, was 6 1/3 at the date of the alleged wrongful retention. He had lived in Western Australia all of his life. The parents were not married and the father had no legal custody rights in respect of the boy. However, for the six months prior to the removal the father was the child’s primary carer, the mother having returned to Wales, her jurisdiction of origin, in April 1992.
Prior to the maternal grandmother taking the child to Wales to visit the mother, the father’s lawyer drafted an agreement which specified that the parents were to have joint guardianship, with the father exercising sole custody. However, this agreement was not registered with the local court and therefore was not enforceable under Western Australian law.
On 30 March 1994 the High Court ordered the return of the child, finding that the father had acquired rights amounting to Convention “rights of custody” – first through his active role in the care of the child, secondly through the status which the mother and the grandmother had themselves accorded to him as a party whose consent was necessary before F could be removed from the jurisdiction or issued with a passport, and thirdly though the rights recognized or accorded to him when the mother signed the minute of agreement.
The mother appealed.