UK – IN RE A – 1992

UK – IN RE A – 1992(1992) (return denied on appeal)(Acquiescence) Child is taken to England. Child is ordered returned by the lower court. Mother appeals, appeal allowed. The case was sent to the “High Court for consideration whether the child should or should not be returned to the jurisdiction of the German courts”. The appeals court decision runs contra to the Convention. (see Mr. Hilton’s footnotes)


In re A (a Minor) (Abduction: Acquiescence)Life & Times 25 Aug 1992 — Court of Appeal Law Report
[United Kingdom]

Before Sir Donald Nicholls, Vice Chancellor, Lord Justice
Butler-Sloss and Sir Michael Kerr

[Judgment 29 Jul 1992]

The father of a child abducted to England could be said to have
acquiesced in the abduction for the purposes of article 13(a) of
the Hague Convention on Civil Aspects of International Child
Abduction notwithstanding that he did not at the time of the acts
alleged to constitute acquiescence have specific knowledge of his
rights under the Convention.

The Court of Appeal so held when allowing an appeal by the
child’s mother, uncle and aunt from the order of Mrs. Justice
Booth made on 21 May 1992, in the Family Division, that the child
should be returned to Germany, his country of habitual residence,
under article 12 of the Convention.

Mr. Patrick Eccles, QC and Miss Camilla De Sousa Turner for the

Mr. Patrick Eccles, QC and Miss Camilla De Sousa Turner for the
uncle and aunt.

Mr. Andrew Ritchie for the father.

LORD JUSTICE BUTLER-SLOSS said that unless article 13 of the
Hague Convention, incorporated into English law in Schedule 1 to
the Child Abduction and Custody Act 1985, applied, the judge was
bound to order the return of the child under article 12. The
court had, however, a discretion not to return the child if one
of the situations set out in article 13 was proved.

Article 13(a) was relied upon:

“Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return
of the child if the person [who] . . . opposes its
return establishes that–(a) the person . . . having
the care of the person of the child . . . had consented
to or subsequently acquiesced in the removal or
retention . . .”

The judge relied on and applied a passage from the judgment of
Lord Justice Stuart-Smith in In re A (Abduction: Custody rights)
(The Times 17 Feb; [1992] 2 WLR 536, 547-548) in the course of
which he had said:

“A party cannot be said to acquiesce unless he is
aware, at least in general terms, of his rights against
the other parent. It is not necessary that he should
know the full or precise nature of his legal rights
under the Convention: but he must be aware that the
other parent’s act in removing or retaining the child
is unlawful.”

Her ladyship did not agree with the judge or with Mr. Ritchie’s
argument that in order to show acquiescence it had to be
established that the applicant had specific knowledge of his
rights under the Hague Convention.

In her Ladyships’ view, on the evidence there was a clear case of
acquiescence which had been accepted and acted upon by the
mother’s family.

She would allow the appeal and set aside the direction to return
the child forthwith to Germany and would remit the case to the
High Court for consideration whether the child should or should
not be returned to the jurisdiction of the German courts.

The Vice-Chancellor and Sir Michael Kerr delivered concurring

Solicitors: Johnson and Grant; Bower and Bailey; Pritchard Joyce
and Hinds.

Footnotes by William M. Hilton, CFLS
1. This decision, while technically correct and which follows In
re A (Minors) (Abduction: Acquiescence) UK Court of Appeal,
seems to be contra to The Convention which seeks to have the
child promptly returned to its habitual residence which,
presumably, is the place where the bulk of the evidence
concerning its best interests can be found. For a
contrasting decision on this point see Tyszka v Tyszka STATE
Case No. 90-022578-DM. This is available on this BBS as