The children were 4 _ and almost 3 at the date of the alleged wrongful removal. They had until then spent all of their lives in England. The parents were not married. They cohabited until September 1995, thereafter the children lived with the mother. In March 1996 the father applied to the local family proceedings court for parental responsibility and contact orders. In September 1996 he also applied for a residence order.
The applications were listed for final hearing on 12 February 1997 but the parents reached an agreement whereby the father withdrew his application for a residence order in return for interim contact with a review in six months. A final hearing of the father’s applications for contact and parental responsibility was set for 15 September. A court welfare officer’s report dated 1 September recommended that the agreed contact continue and that the father have parental responsibility.
On 5 September the mother took the children to Australia with her new husband. On 15 September the father was granted parental responsibility. The father subsequently sought a declaration from the Family Division of the High Court that the removal was wrongful.