UK – IN RE A AND OTHERS – 1992

UK – IN RE A AND OTHERS – 1992 (1992) (Return denied on appeal)(Abduction and Acquiescence) Mother removed children from Australia to England. Lower court ordered the return of the two children to Australia. Mother appealed. Appeal allowed, returned denied.

Re A and another (minors) (abduction: acquiescence)[1992] 1 All ER 929, CA
[1992] Fam. 106

COURT OF APPEAL, CIVIL DIVISION
LORD DONALDSON OF LYMINGTON MR BALCOMBE AND STUART-SMITH

12 FEBRUARY 1992

Minor – Custody – Rights of custody – Foreign custody rights –
Wrongful removal or retention – Acquiescence – Mother secretly
moving children from Australia to England and then notifying
father – Father writing letter to mother stating that he knew
mother’s action was illegaL but that he was not going to fight it
– Father subsequently seeking return of children to Australia
alleging unlawful abduction – Whether father acquiescing in
removal of children from Australia – What amounts to acquiescence
– Child Abduction and Custody Act 1985, s 2(2), Sch 1, art 13(a).

In 1982 the father and the mother, who were British subjects,
emigrated to Australia, where they married in January 1983.The two
children of the marriage were born in Australia in 1985 and 1987.
Following matrimonial difficulties the parties attempted a
reconciliation and made an abortive return to England but they
returned to Australia in 1989 and finally separated in July 1990.
The mother moved into rented accommodation while the father
remained in the matrimonial home and commenced cohabiting with a
new partner. In July 199I the father resigned his job following a
conviction for a drink-driving offence. A few days later the
mother was granted Australian citizenship. The father’s
application was still pending. In August 1991 a decree nisi of
divorce was pronounced by the Family Court of Australia on the
joint application of both parties. The court made no order
relating to the children and declared itself satisfied with the
arrangements which had been made for their welfare which included
residence with the mother and access by the father at weekends and
at any time by mutual consent. On 18 September, shortly after the
decree nisi was made absolute, the mother secretly and with a
degree of premeditation removed the children from Australia and
took them to England. She sent a telegram to the father stating
that she had returned to England for a rest. On 23 September 1991,
three days after receiving the telegram, the father wrote the
mother a letter in which he stated that, although what she had
done was illegal, for the sake of the children he was not going to
fight it and he asked that his letters and presents be passed on
to them and that he be kept informed of their progress. On the
same day the father sought legal advice and was advised to find
out whether the mother intended to remain in England permanently.
The next day he telephoned the mother to ascertain her intentions.
On 27 September the mother received the father’s letter and
replied the same day explaining her reasons for leaving Australia
and stating that she intended to remain in England indefinitely.
Meanwhile the father applied in Australia for the return of the
children pursuant to the Convention on the Civil Aspects of
International Child Abduction (which had the force of law in the
United Kingdom by virtue of s 1(2) of the Child Abduction and
Custody Act I985 and was set out in Sch 1 thereto) and in December
a summons under the 1985 Act was served on the mother in England
seeking the return of the children to Australia. The mother
conceded that the removal of the children was wrongful under the
convention but contended that the court should exercise its
discretion under art 13 FN-1 of the convention not to order their
return because (i) the father had, by his letter of 23 September,
‘acquiesced’ in the mother’s removal of the children within art 1
3(a) and/or (ii) there was a grave risk that the return of the
children would place them in `an intolerable situation’ within art
I3(b) because they would have to rely on state benefits in
Australia since the father could not support them financially. The
judge held that the father had not acquiesced in the removal or
retention of the children and that the mother had not established
that the return of the children to Australia would place them in
an intolerable situation and ordered that they be returned. The
mother appealed.

Held – (1) (Balcombe LJ dissenting) In determining whether a
parent could be said to have acquiesced in the unlawful removal or
retention of a child by the other parent within art 13 of the
convention each case had to be considered on its own special
facts, since acquiescence could be either (a) active acceptance
signified either by express words of consent, in which case there
had to be clear and unequivocal words or by conduct and the other
party had to believe that there had been an acceptance, or conduct
inconsistent with an intention by the aggrieved parent to insist
on legal rights and consistent only with an acceptance of the
status quo, or (b) passive acquiescence inferred from silence and
inactivity for a sufficient period in circumstances where
different conduct was to be expected on the part of the aggrieved
parent. However a parent could not be said to have acquiesced in
the unlawful removal or retention of a child within art 13 unless
he was aware of the other parent’s act of removing or retaining
the child, was aware that the removal or retention was unlawful
and was aware, at least in general terms, of his rights against
the other parent, although it was not necessary that he should
know the full or precise nature of his legal rights under the
convention. Furthermore, since acquiescence was not a continuing
state of mind, an acceptance of an unlawful removal or retention
could not be withdrawn once known to the other party, although an
attempt to do so soon after the acceptance was notified to the
other party would be relevant to the exercise of discretion to
return the child. Since the father by his letter of 23 September
had clearly and unambiguously accepted what the mother had done
and had told her that he intended to take no action, and since at
that time he recognised that her action was unlawful and then
or soon after knew of his rights under the convention before his
acceptance was known to her, he had acquiesced in the wrongful
removal of the children within art 13(a). The appeal would
therefore be allowed and the case remitted to the High Court for
consideration under art 13 of whether the children should be
returned to Australia (see p 939 j to 940 d g to j, p 941 b to d g
and p 943 a to g, post).

(2) The mother had not established that there would be a
sufficiently grave risk that the return of the children to
Australia would expose them to physical or Psychological harm or
otherwise place them in an intolerable situation within art 13(b)
of the convention because there was no home or financial support
for them in Australia and the family would have to rely on state
benefits, since the mother and children were also dependent on
state benefits in England (see p 939 c to g and p 941 h j, post).

Notes

For the civil aspects of international child abduction wrongfully
removed, see Supplement to 8 Halsbury’s Laws (4th edn) para 525A.

Cases referred to in judgments

A (minors: abduction), Re [1991] 2 FLR 241, Fam D and CA.

Orr v Ford (1989) 167 CLR 316, Aust HC.

Taylor (a minor), Re (16 Jan 1992, unreported), Fam D.

Cases also cited or referred to in skeleton arguments

Allcard v Skinner (1887) 36 Ch.D. 145, [1886-90] All ER Rep 90,
CA.

Backhouse v Backhouse [1978] 1 All ER 1158, [1978] 1 WLR 243.

C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER
465, [1989] 1 WLR 645, CA.

C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961,
sub nom Re J (a minor) (abduction: custody rights) [1990] 2 AC
562, HL.

F (a minor), Re [1991] CA Transcript 830

H (minors) (abduction: custody rights), Re, Re S (minors)
(abduction: custody rights) [1991] 3 All ER 230, [1991] 2 AC 476,
HL.

S (a minor), Re [1990] CA Transcript 745.

Appeal

The mother of two minors appealed from the order of Thorpe J in
chambers dated 20 December 199I whereby he granted the father’s
application under the Child Abduction and Custody Act 1985 for an
order that the minors be returned to the jurisdiction of the State
of Victoria, Australia, under arrangements to be agreed between
the parties and, in default of agreement, specified by the court.
The facts are set out in the judgment of Balcombe LJ.

Lord Meston (instructed by Reynolds Porter Chamberlain) for the
mother.

Mark Everall (instructed by Collyer-Bristow) for the father.

Cur adv vult

12 February 1993. The following judgments were delivered.

BALCOMBE LJ (giving the first judgment at the invitation of Lord
Donaldson MR).

This is an appeal by a mother of two children, Patrick (who
was born on 2 September 1985 and is now aged six and a half) and
Luke (who was born on 28 February 1987 and is now nearly five),
from an order made by Thorpe J in chambers on 20 December 1991
under the Child Abduction ana Custody Act 1985, when he directed
that the two boys be returned to the State of Victoria, Australia
under arrangements to be agreed between the parties or, in default
of agreement, specified by the court. The father is the respondent
to the appeal.

The father was born in Northern Ireland and is now aged 41.
The mother was born in England and is now aged 31. In January 1982
the father, who had been living with the mother, went to Australia
to find work and was followed by the mother in April of that year.
They resumed their relationship and were married at Frankston in
the State of Victoria on 8 January 1983. The two children of the
marriage were born on the dates I have already mentioned.

The marriage was going through a difficult period in 1987 and
in February or March of 1988 the mother came to England with the
two boys to stay with her parents in Kent. The father said that he
had originally understood that this was to be for a three month
holiday, but he soon realised that the mother intended it to be
permanent. He sold their house in Australia and in October 1988
returned to England where he obtained fresh employment and bought
a house for the family.

However in 1989 the parties decided to return to Australia.
They have given different versions as to how this came about, but
the fact is they did return to Australia on 1 September 1989.
They bought another house and the father obtained another job; the
mother also worked part-time at the weekends to supplement their
income.

Unfortunately the reconciliation did not last. They separated
on 20 July 1990. The mother moved out into rented accommodation
with the two boys–there were good economic reasons for this as
she could obtain a rental subsidy; the father remained in the
matrimonial home and had the boys to stay with him every weekend.
The father now has a new partner with whom he cohabits.

On 11 July 1991 the father was convicted of a drink-driving
offence and disqualified for 15 months. Soon afterwards, and as a
consequence of this conviction, he resigned from his job. On 15
July 1991 the mother was granted Australian citizenship; the
father’s application is still pending.

On 22 July 1991 the parties made a joint application for
divorce and a decree nisi was pronounced in the Family Court of
Australia on 12 August 1991, the court being satisfied that both
parties were domiciled in Australia. (In the application the
mother referred to her Australian nationality and said that she
considered Australia her permanent home.) No order relating to the
children was made, but the court declared that it was satisfied
that proper arrangements had been made for their welfare. Those
arrangements, set out in a form which was signed by both parents,
included a statement that the mother and the children resided in a
unit located at Mornington in the State of Victoria and that the
children were supervised by the mother before and after school and
kindergarten and were supervised by the father at weekends. It was
further stated that the children currently attended a particular
kindergarten and primary school both in Mornington. Both children
were progressing extremely well. It was also stated that the
father had access to the children at any time by mutual consent of
both parents. The decree was made absolute on 13 September 1991.

On 14 to 15 September 1991 the father enjoyed weekend access
to his two sons. On 18 September 1991 the mother, in circumstances
of some secrecy and with a degree of premeditation, removed the
children from the State of Victoria and took them to England to
her parents’ home in Tonbridge, Kent, where they have been since.
She then sent the father a telegram in the following terms:

‘Have returned to UK for rest as I felt totally
exhausted. Boys were excellent on the flight. Sally.’

Three days after receipt of this telegram, on 23 September 1991 ,
the father wrote a long handwritten letter to the mother. Since
this appeal depends largely on the terms of that letter I quote it
in full:

‘Dear Sally

Well. Where can I start this letter? Yet again you have
dealt me a shocking blow. I’m deeply depressed &
saddened by not just what you’ve done but the way
you’ve done it. Words come to mind like selfish, cruel
and cowardly but I’m not going to use this letter to
attack & criticise. I’m going to use it to get my
message across and I want you to have the decency to
respond quickly. If you could have had the courage to
sit down & talk this through, you may have been
surprised by my open mindedness & I would have had the
opportunity to say goodbye to my own children. Children
that you know love me & enjoy me. How could you have
been so callous. What is it going to take to make you
trust me? I have never broken my word to you. I have
never betrayed you. In the agonys of the last couple of
years I’ve behaved fairly and openly. I thought we were
getting on quite well. I did not block anything & I
faced all my responsibilities including supporting your
car loan & your half of the mortgage for over a year.
Now I am six weeks away from the bank repossing [sic]
the house and going into debt. Remember if we do sell
the house before hand that you’ll need to be involved.
Anyway, as I said I’m not going to use this letter for
negatives. Sally you know how dearly I love Patrick &
Luke and I’m not going to let them become casualities
of a tug of war battle. I think you know what you have
done is illegal, but I’m not going to fight it. I am
going to sacrifice myself rather than them. In return I
want your support that you will always let them know
who I am & where I am. I want you to make sure that any
cards letters or presents are passed on, and I want you
to keep me in touch with their progress by letters &
photographs. These are reasonable & legitimate
requests. When the boys are old enough to read & write
I want to communicate with them. I want them to know
that they have a father, where he lives and that he
loves them and will always be there for them. I also
want to see them if I ever come over on business or
holiday. Please respond quickly to this letter. Perhaps
one day you may be big enough to go visiting to Eileen
& my Mum. They know nothing of how you treated me &
would welcome you and the children openly. I know you &
your parents will be good to them. Please don’t poison
them with lies & deceit. Truth last’s for ever. Lies
only last until they’re found out and they’re always
found out. Our boys will be young men one day & if
you’re not truthful to them they’ll go in search of it
themselves when they’re ready. I will keep you in touch
with my movements & what surburb I’m living in & as
soon as I’m earning I will contribute as well as I can.
I want you to know that wherever I’m living a room of
my house is open for you & of course the boy’s.
Regardless of what has gone before. You may want a
holiday one day or you may even want to try Australia
again. Please try & trust me Sally & please try & find
the courage to look inward and stop hating me for
things I have never done and making me a person I have
never been. Lets not make this a legal battle. We can
work it out between us. Just like we did the divorce.
You can’t give thirteen years of your life and share
two beautiful children without impact. Part of me will
always be with you. I’m waiting eagerly for your
positive reply.
fond regards
Robert xx.’

The father, in an affidavit sworn in these proceedings since
the date of the hearing before the judge, has stated that when he
wrote that letter he was trying to be as positive as he could and
not distance the mother any further. He added: ‘Given the sudden
turn of events I felt helpless, powerless and shell-shocked.’

On the same day as writing that letter and apparently shortly
afterwards, the father contacted the local office of the Legal Aid
Commission and was referred to the family law section of that
commission in Melbourne. He spoke on the telephone to a lawyer, Mr
Shackell, and was advised to find out whether the mother intended
to remain in England permanently–her telegram referred only to a
return ‘for rest’.

There was a telephone conversation between the parties on 24
September 1991, the exact terms of which are in dispute. The
father says that he told the mother of the Convention on the Civil
Aspects of International Child Abduction (The Hague, 25 October
1980; TS 66 (1986); Cm 33) (the Hague Convention) and pointed out
that what she had done was unlawful. He asked her for a ‘statement
of intent’ as advised by Mr Shackell. He also asserts that he then
said that he would do everything in his power legally to have the
children returned to Australia. The mother accepts that she
received a telephone call from the father on 24 September, that he
told her he had taken legal advice, asked her if she had heard of
the Hague Convention (which she said she had not), and asked her
for a ‘statement of intent’. Thus it is apparent that the main
point in issue between the mother and the father over this
telephone conversation is whether the father told her in this
conversation, and before she received the letter of 23 September
1991, that he would do everything in his power legally to have the
children returned to Australia.

Upon receipt of the father’s letter dated 23 September on 27
September the mother wrote back the same day:

‘Dear Robert,
Thank you for your letter which I received this
morning. I understand and do care that I need to
explain to you my reasons. I found the situation
intolerable in Australia . . . As you know I have no
support in Australia and I felt it was essential for me
to come home to have the support of my parents and
relatives, which has turned out to be an excellent
thing, we are all being well looked after and very
happy. You obviously must understand that I plan to
stay in the UK indefinitely . . . I really do
appreciate that you have at least understood that it is
best for the boys to stay with me in the U.K., and also
agree that we should not launch ourselves into a nasty
court battle — I feel we are above all that. Of course
I will keep you in touch with the boys with photos,
calls and of course letters. I must say that I do wish
you the best of luck and that if you do visit the U.K.
you would be welcome to come and visit the boys at any
time. Please keep in touch about the house and any
possible prospective buyers. Thanks again for your
letter.

Regards Sally.’

The judge held that for the purposes of his judgment he
should reject the father’s claim that he told the mother of his
intention to pursue his application under the Hague Convention.
His reasons for doing so are given in the following terms :

‘Firstly the communication which was written by the
wife on 27 September referred only to the letter of the
23rd and not to the telephone conversation of the 24th.
If there had been a fundamental inconsistency between
the two communications, it seems to me likely,
although, of course, not certain, that the wife in her
letter of 27 September would have referred to that
inconsistency. Secondly there is the consideration that
Lord Meston on instructions makes it plain that the
wife’s parents were listening to this conversation on a
telephone extension and that they would be available to
support her version of what passed. The third
consideration is that the father in two subsequent
telephone conversations in October not only concedes
but indeed claims that he made no reference to what he
was doing in Australia for fear of spoiling the
prospects of success by giving advance notice of what
was to come. So I proceed on the basis that the
telephone communication of the 24th went no further
than an inquiry by the father for clarification and a
plain statement that the return was intended by her to
be permanent.’

That question is the subject of a respondent’s notice by the
father.

The father went ahead in Australia with his application under
the Hague Convention. Although he subsequently spoke to the mother
on the telephone about the sale of the former matrimonial home, he
deliberately made no mention of his application under the
convention, in case she should move from her parent’s address and
become impossible to locate.

The father’s application in Australia led to a request to the
Lord Chancellor’s a Department on 1 November 1991 and an
originating summons was issued on 5 December 1991. That summons,
with an affidavit in support, was served on the mother the
following day (6 December 1991) and she says that was the first
she knew of the father’s application.

The principal issue in this appeal is whether the father, by
his letter of 23 September 1991 or otherwise, acquiesced in the
mother’s removal of the children within the meaning of art 13(a)
of the Hague Convention. Since that in turn depends on the meaning
of `acquiesced’ in the context in which it appears, it is
necessary to set out a number of the provisions of the Hague
Convention. The convention is in large part set out in Sch I to
the Child Abduction and Custody Act 1985, and the provisions thus
set out are incorporated into English domestic law by s 1(2) of
the Act. However, for the purposes of this judgment it is
relevant to mention two parts of the convention which are not so
scheduled. First the preamble, which reads in its English version:

‘The States signatory to the present Convention, Firmly
convinced that the interests of children are of
paramount importance in matters relating to their
custody, Desiring to protect children internationally
from the harmful effects of their wrongful removal or
retention and to establish procedures to ensure their
prompt return to the state of their habitual residence,
as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect .
. .’

Then:

Article 1: The objects of the present Convention are
— (a) to secure the prompt return of children
wrongfully removed or retained in any Contracting
State; and (b) to ensure that rights of custody and of
access under the law of one Contracting State are
effectively respected in the other Contracting States.’

The following provisions are contained in Sch I to the 1985 Act:

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 . . . 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 . . .

Article 12
Where a child has been wrongfully removed or retained
in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial or
administrative authority of the Contracting State where
the child is, a period of less than one year has
elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the
return of the child forthwith. The judicial or
administrative authority, even where the proceedings
have been commenced after the expiration of the period
of one year referred to in the preceding paragraph,
shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new
environment. . .

Article 13
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 . . . which opposes its
return establishes that — (a) the person . . . having
the care of the person of the child was not actually
exercising the custody rights at the time of removal or
retention, or had consented to or subsequently
acquiesced in the removal or retention; or (b) there is
a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise
place the child in an intolerable situation. The
judicial or administrative authority may also refuse to
order the return of the child if it finds that the
child objects to being returned and has attained an age
and degree of maturity at which it is appropriate to
take account of its views . . .

Before the judge it was conceded by the mother, as it has
been conceded before us, that the removal of the children to
England was a wrongful removal under the 1980 convention and the
real area of dispute resolved itself into two issues under art I3.
(1) Was there acquiescence by the father? (2) Is there a grave
risk that the return of the children to Australia would place them
in an intolerable situation ?

It will be seen that the scheme of the convention is that,
where a child has been wrongfully removed or retained under art 3,
then, where the proceedings to recover the child are commenced
within a period of less than one year from the date of the
wrongful removal or retention, the court of the country to which
the child has been taken is under an obligation — there is no
discretion — to order the immediate return of the child. However,
if consent to — which in the context must mean prior consent —
or subsequent acquiescence in the removal or retention of the
child by the other parent is established, then, as it was put in
argument, the door is unlocked and the court is not then bound to
order the return of the child but has a discretion whether or not
to do so. The scheme of the convention is thus clearly that in
normal circumstances it is considered to be in the best interests
of children generally that they should be promptly returned to the
country whence they have been wrongfully removed, and that it is
only in exceptional cases that the court should have a discretion
to refuse to order an immediate return. It is that context that I
turn to consider the meaning of `acquiesced’ in art 13(a).

The relevant meaning of `acquiesce’ in the Oxford EngLish
Dictionary (2nd edn, 1989) is: `To agree tacitly to, concur in; to
accept (the conclusions or arrangements of others).’ The
corresponding meaning of `acquiescence’ is: `Silent or passive
assent to, or compliance with, proposals or measures.’ Since
French and English are both official languages of the Hague
Convention, we were referred also to the French version of art
13(a), where the relevant words are `ou avait consenti ou a
acquiesce posterieurement’ and to a French dictionary definition
of `acquiescer’, Dictionnaire de la Langue du 19 et du 20 siecle,
where the relevant meaning is: ‘B. Dans un cont. de naturejur.
Donner une adhesion tacite ou expresse a un acte.’ We were also
referred to a judgment of Deane J in the High Court of Australia
in Orr v Ford (1989) I67 CLR 3I6 at 337-338, where he gave a
comprehensive dissertation on the various meanings which
`acquiescence’ can have at common law. Since we are here concerned
with the meaning of `acquiesced’ in an international convention to
which many countries, not only those with a common law background,
have adhered, it cannot be right to attempt to construe
‘acquiesced’ by reference only to its possible meaning at common
law or equity. Nevertheless Deane J’s first definition appears to
me to have general force:

‘Strictly used, acquiescence indicates the
contemporaneous and informed (“knowing”) acceptance or
standing by which is treated by equity as “assent”
(i.e. consent) to what would otherwise be an
infringement of rights . . .’

It was common ground before us that acquiescence can be
inferred from inactivity and silence on the part of the parent
from whose custody, joint or single, the child has been wrongfully
removed. In such a case it is in my judgment inevitable that the
court would have to look at all the circumstances of the case, in
particular the reasons for the inactivity on the part of the
wronged parent and the length of the period over which the
inactivity persisted, in order to decide whether it was legitimate
to infer acquiescence on his or her part.

However, where as here, it is said that the father’s
acquiescence was expressed to the mother by the letter of 23
September 1991, it is argued that this was a once for all event
and it is impermissible to consider subsequent events, or what was
in the mind of the father at the time that he wrote the letter or
thereafter. Indeed the argument goes so far as to say that, if the
mother had received a letter by the following post making it clear
that the father had retracted what he said in his letter of 23
September, and was going to use every legitimate step open to him
to have the children returned to Australia, nevertheless he had
`acquiesced’ in their discretion whether or not to order the
return of the children.

In my judgment this is to give ‘acquiesced’ far too technical
a meaning for the context in which it is used. As I have already
said, the main object of the Hague Convention is to require the
immediate and automatic return to the state of their habitual
residence of children who have been wrongfully removed. To this
there is a limited number of exceptions, but it is apparent that
the purpose of the exceptions is to preclude the automatic return
of the children to the country whence they were removed, only if
it can be shown or inferred that this could result in unnecessary
harm or distress to the children. In other words, it is to the
interests of the children that the exceptions are directed, not
(except in so far as these directly affect the interests of the
children) the interests of the parents or either of them. In my
judgment this requires the court to look at all the
circumstances which may be relevant and not, as is here submitted,
to the terms of a single letter.

Added force is given to this view by the English and French
dictionary definitions of ‘acquiesce’ which I have quoted above.
‘Accept’ and `adhesion’ to my mind connote a state of affairs
which persists over a period. `Acquiesce’ is not, in my judgment,
apt to refer to a single expression of agreement taken in
isolation from all surrounding circumstances.

This was the view which commended itself to Thorpe J. He
said:

‘if only the communication between the mother and the
father is examined, then there is seemingly unequivocal
acquiescence. But in my judgment it is not sufficient
to investigate only the communication between the
parents. The whole conduct and reaction of the husband
must be investigated in the round. This case starkly
illustrates [the] contrast between the father’s
communication to the mother and his words and actions
to others. The four communications between them — the
one Letter and the three telephone calls —
undoubtedly, in my judgment, served to lull the mother
into a state of reassured security. That the state was
insecure in the extreme was demonstrated by his
simultaneous launch of proceedings under the Abduction
Convention which he thereafter pursued without
ambivalence, without delay, and even, it might be
said, with a degree of guile in that he took positive
steps to conceal from the mother what he was preparing
to launch against her. I do not consider that the
question of fact whether or not a plaintiff has
acquiesced within the meaning of art 13(a) can be
determined by looking only to what he states or
represents to the defendant. His words a must be judged
in the round. His words must be judged together with
his actions. It is only too familiar for human beings
to say one thing and do another. Here it is manifest
that the father has, judged on all relevant facts aside
from the letter of 23 September, acted consistently,
expeditiously and unambiguously to achieve the return
of the children. It seems to me that it would be
dangerous to judge an issue of fact such as
acquiescence on the communication between the parents
alone, particularly on communication written hot after
the unlawful removal, when the writer is in a state of
emotional turmoil. In this case too there are some
slight indications in the letter that the father’s
emotional turmoil even extended to the suggestion that
there might be some room for a resumption of
cohabitation despite the dissolution of the marriage.’

In reaching his decision on this issue the judge was
purporting to follow the judgments given in this court in the only
decision so far reported on art 13(a), Re A (minors: abduction)
[1991] 2 FLR 24I. That case is clearly distinguishable on its
facts, since there was no such unequivocal statement as was here
contained in the father’s letter of 23 September 1991.
Nevertheless, the approach in that case, both by the judge at
first instance and by this court, was to look at all the facts to
see if acquiescence had been established. Further, both Fox LJ (at
249) and I (at 250) regarded as relevant the effect of the
acquiescence upon the person who had wrongfully removed, or (as
there) was wrongfully retaining, the children. Indeed Lord Meston,
for the mother, invited us to consider the mother’s reaction to
the letter of 23 September. He submitted that in reliance on it:
(1) she did not move on. This is a euphemism for saying that she
did not attempt to hide herself and the children from the father,
and Lord Meston fairly conceded that he could not rely on such
inactivity on the part of the mother; (2) she settled the children
into a local school. So she did, but she would have been bound to
do this in any event, since at no time did she consider
voluntarily returning to Australia with the children; (3) she
arranged a tenancy of a house in the area. Her evidence was that
the originating summons was served on her before the tenancy was
signed, so that she never became committed.

We were also referred to the judgment of Sir Stephen Brown P
in Re Taylor (a minor) (16 January 1992 unreported). This was also
concerned with acquiescence under art 13(a) of the Hague
Convention, but it turns on its particular facts and in my
judgment it affords no help on the issue of principle to which I
have referred.

However, I do derive assistance from the reference in the
judgment of Deane J in Orr v Ford (1989) 167 CLR 316 to
‘acquiescence’ requiring informed acceptance of the infringement
of rights. Here the father knew that the mother’s removal of the
boys from Australia was illegal. What he did not know when he
wrote the letter of 23 September was the existence of the
procedure under the Hague Convention and his ability to secure a
summary return of the boys to Australia without the necessity of
protracted litigation which it was his avowed intention to avoid.

For these reasons I would uphold the decision of Thorpe J and
dismiss this appeal. However, as the other two members of the
court take a different view, the appeal will be allowed and the
case remitted to the High Court for the exercise of the discretion
under art 13(a). It is highly desirable that this should be done
without delay. If the boys are to go back to Australia, then the
sooner the better.

I can deal quite briefly with the remaining points on this
appeal. By his respondent’s notice the father contended that the
judge was wrong to find as a fact that the father did not tell the
mother of his expressed intention (to invoke the Hague Convention)
during the telephone conversation of 24 September 1992. Mr
Everall, for the father, accepted that there was no possibility of
the father coming to England to give oral evidence in this case.
In those circumstances in my judgment the judge was correct to
hold that, in the light of the mother’s letter of 27 September
1991, and on the balance of probabilities, the father did not make
clear to her in the telephone conversation of 24 September that he
did not mean what he said in his letter of 23 September and that
she should not rely on what he said in it about his attitude to
the return of the boys.

The judge also rejected a submission on behalf of the mother
that there was a grave risk that to return the boys to Australia
would place them in an intolerable situation. If the judge had
accepted that submission that would have unlocked the door to the
exercise of his discretion under art 13(b). The argument relied on
to support that submission is set out in the judgment in the
following passage :

‘The argument there is that on their arrival there is
no home and there is no financial support forthcoming
from the plaintiff who himself lives on state benefits.
That is in contrast to the security that the mother has
achieved since her arrival in this jurisdiction. Here
she has the support of her parents. She is in a
position to sign a lease immediately for the rent of a
suitable home. There is a letter from the school
showing that the children have apparently settled in
well to a Church of England primary school. Therefore
it is said that the situation on their return would be
intolerable and pointless.’

The judge rejected this argument:

‘I have reached the clear conclusion that the mother
has not established a sufficiently grave risk of a
sufficiently substantial intolerable situation, The
fact is that between July and September of this year
the whole family was dependent on state benefits. In
this jurisdiction equally the mother and children are
dependent on state benefits. On their return they would
again be entirely dependent on Australian state
benefits. So that can hardly be said in itself to
constitute an intolerable situation.’

This submission was revived before us. Nevertheless I am quite
clear in my mind that the matters (largely financial) upon which
the mother seeks to rely as constituting an intolerable situation
in Australia come nowhere near to establishing what the Hague
Convention requires by that phrase. In my judgment the judge was
entirely right on this point.

STUART-SMITH LJ.

Under the provisions of art 12 of the Convention on the Civil
Aspects of International Child Abduction (The Hague, 25 October
1980; TS 66 (1986); Cm 33), which has force of Law in the United
Kingdom by virtue of s I(2) of the Child Abduction and Custody Act
1985, where a child has been wrongfully removed or retained the
court of the state to which it has been removed must order its
return, if the application is made within a year of the removal or
retention. Article 13 provides two exceptions to this rule, which,
if satisfied, afford a discretion to the court to consider whether
or not the child shall be returned. The first exception, so far as
it relates to this case is where the father ‘had consented to or
subsequently acquiesced in the removal or retention’. The
reference to consent appears to mean consent prior to the removal
or retention and is not relevant here. The question is whether he
subsequently acquiesced. Acquiescence means acceptance and it may
be either active or passive.

if it is active it may be signified by express words of
consent or by conduct which is inconsistent with an intention of
the party to insist on his rights and consistent only with an
acceptance of the status quo. If it is passive it will result from
silence and inactivity in circumstances in which the aggrieved
party may reasonably be expected to act. It will depend on the
circumstances in each case how long a period will elapse before
the court will infer from such inactivity whether the aggrieved
party had accepted or acquiesced in the removal or retention.

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. And if he is aware of the factual situation giving rise
to those rights, the court will no doubt readily infer that he was
aware of his legal rights, either if he could reasonably be
expected to have known of them or taken steps to obtain legal
advice.

If the acceptance is active it must be in clear and
unequivocal words or conduct and the other party must believe that
there has been an acceptance. This distinguishes this case from Re
A (minors: abduction) [1991] 2 FLR 241, where the husband’s
language and behaviour was ambivalent and the wife did not believe
that the father was agreeing to what she had done. Fox LJ said (at
249):

‘The judge found that the mother feared the father’s
determination to get the children back. She also
specifically stated that she did not find that the
mother was persuaded, by what the father said, into
believing that he meant what he said. That, it seems to
me, was essentially a matter of fact for the judge who
heard the evidence and, in my view, it was a conclusion
to which the judge was perfectly entitled to come, upon
the facts and evidence before her. If the mother did
not believe that the father’s protestations were
genuine, it seems to me to be quite unreasonable to say
that there was any acquiescence upon the father’s part.
The mother herself placed no reliance upon the father’s
statements. She did not trust him. The father was
making statements in which he himself did not really
believe, but felt it necessary to make them in order
that his own position should not be prejudiced. Neither
party trusted the other nor believed the other.’

In my judgment, the language of the letter of 23 September
1991 was clear and unambiguous and amounted to an acceptance of
what the mother had done and a statement that he did not intend to
take proceedings in relation to it. He recognised that her action
was unlawful and by 24 September at the latest he was aware of his
rights under the Hague Convention. If, before the letter had
arrived the father had told the mother on the telephone that he
was going to pursue those rights and that she was to ignore the
letter when it arrived, he could not in my view have been said to
have acquiesced because he would have withdrawn his acceptance
before it was known to the mother. But the judge, rightly in my
opinion, did not accept his evidence to this effect. In fact, the
mother was quite unaware that he had changed his mind until she
was served with the application on 6 December 1991, over two
months after receipt of the letter of 23 September.
Nevertheless the judge did not accept that this `seemingly
unequivocal acquiescence’, as he put it, was enough. He said:

‘ . . . it is not sufficient to investigate only the
communication between the parents. The whole conduct
and reaction of the husband must be investigated in the
round. This case starkly illustrates [the] contrast
between the father’s communication to the mother and
his words and actions to others. The four
communications between them — the one letter and the
three telephone calls — undoubtedly, in my judgment,
served to lull the mother into a state of reassured
security. That the state was insecure in the extreme
was demonstrated by his simultaneous launch of
proceedings under the Abduction Convention which he
thereafter pursued without ambivalence, without delay,
and even, it might be said, with a degree of guile in
that he took against her.’

In my judgment the judge fell into error in considering what the
father was doing, unknown to the mother. It is not open to a
parent who in clear terms says to the other that he accepts what
has been done to come to the court and say that it was all a sham
to deceive the other parent, because he did not mean what he said
and his actions in consulting his lawyers show that to be so. In
this case it appears to be common ground between the parties that
the letter was bona fide and the father meant what he said in it;
but he subsequently changed his mind, though he did not tell the
mother till 6 December. The change of mind cannot alter the fact
that he had acquiesced. Acquiescence is not a continuing state of
affairs. The question is whether at some time prior to the issue
of proceedings the plaintiff had acquiesced. If the acceptance is
quickly withdrawn, that is no doubt a relevant matter for the
judge to consider when exercising his discretion; but it does not
affect the acceptance.

The judge also said that it would be dangerous to judge an
issue of fact such as acquiescence on communications between
parents alone, particularly on communications written hot after
the unlawful removal when the writer is in a state of emotional
turmoil. If the express acceptance relied upon is in truth
confused, equivocal and unclear, such as may be the case if it is
written by a parent in a state of emotional turmoil, then of
course it does not amount to an acceptance in clear and
unambiguous terms. But that is not the case here. There is much
force in Lord Meston’s submission that the letter shows no
evidence of emotional turmoil. The separation of the parties had
taken place months before and the letter itself was written three
days after the father received news of the unlawful removal. It is
expressed in careful, restrained and considered terms.

For these reasons I would hold that the father had acquiesced
in the wrongful removal of the children and he did not purport to
revoke or withdraw such acquiescence until service of the
proceedings on 6 December 1991. I would therefore allow the
appeal. The matter must be remitted to the Family Division so that
a judge of that division can consider, as a matter of discretion,
whether the children should be returned to Australia.

The second exception possible under art 13 is where there is
a grave risk that the child’s return would expose him or her to
physical ‘or psychological harm or otherwise place the child in an
intolerable situation. I have had the advantage of reading the
judgment of Balcombe LJ and on this aspect of his judgment I agree
with what he has said and have nothing to add.

LORD DONALDSON OF LYMINGTON MR.

I have had the advantage of reading the judgment of Balcombe
LJ and agree with it in all respects save one. This is whether on
the facts of this case the father, being one of the persons
‘having the care of the person of the child . . . subsequently
acquiesced in the removal . . .’ within the meaning of the
Convention on the Civil Aspects of International Child Abduction
(The Hague, 25 October 1980; TS 66 (1986); Cm 33). I have no doubt
that he did. Let me say at once that I unreservedly accept the
vital importance of protecting children from the harmful effects
of their being wrongfully removed from their country of habitual
residence, usually clandestinely and often in circumstances a
calculated to cause them harm. This is the mischief which the
Child Abduction and Custody Act 1985 and the convention, which is
scheduled to the Act, set out to address. They do so by providing
for automatic return in accordance with art 12 if the issue arises
within 12 months of the wrongful removal or retention and, also
later, in that case subject to it not having been demonstrated
that the child is by then settled in its new environment.

All this demonstrates the agreed international response to a
wrongful removal. The child must go back and the status quo ante
be restored without further ado. That said, the convention does
itself enter a caveat which is contained in art 13. Before I
consider whether it applies in this case, it is I think important
to emphasise what is the consequence if it does apply. It is not
that the court will refuse to order the return of the child to its
country or jurisdiction of habitual residence. It is not that the
court will assume a wardship or similar jurisdiction over the
child and consider what order should be made as if the child had
never been wrongfully removed or retained. The consequence is only
that the court is no longer bound to order the return of the
child, but has a judicial discretion whether or not to do so, that
discretion being exercised in the context of the approach of the
convention.

In the comparatively rare case in which such a judicial
discretion falls to be exercised, there will be two distinct and
wholly different issues confronting the court. (1) In all the
circumstances is it more appropriate that a court of the country
to which the child has been wrongfully removed or in which it is
being wrongfully retained (country B) should reach decisions and
make orders with a view to its welfare or is it more appropriate
that this should be done by a court of the country from which it
was removed or to which its return has been wrongfully prevented
(country A)? (2) If, but only if, the answer to the first question
is that the court of country B is the more appropriate court,
should that court give any consideration whatsoever to what
further orders should be made other than for the immediate return
of the child to country A and for ensuring its welfare pending the
resumption or assumption of jurisdiction by the courts of that
country?

in considering the first issue, the court of country B should
approach the matter by giving the fullest force to the policy
which clearly underlies the convention and the Act, namely that
wrongful removal or retention shall not confer any B benefit or
advantage on the person (usually a parent) who has committed the
wrongful act. It is only if the interests of the child render it
appropriate that the courts of country B rather than country A
shall determine its future that there can be any exception to an
order for its return. This is something quite different from a
consideration of whether the best interests of the child will be
served by its living in country B rather than country A. That is
not the issue unless para (b) of art 13 applies. The issue is
whether decisions in the best interests of the child shall be
taken by one court rather than another. If, as usually should be
the case, the courts of country B decide to return the child to
the jurisdiction of the courts of country A, the latter courts
will be in no way inhibited from giving permission for the child
to return to country B or indeed becoming settled there and so
subject to the jurisdiction of the courts of that country. But
that will be a matter for the courts of country A.

I now turn to the point upon which I disagree with Balcombe
LJ. The issue is whether the father `consented to or acquiesced’
in the wrongful removal of the children. Each case must be
considered on its own special facts and the facts of this case are
certainly unusual.

In context the difference between ‘consent’ and
‘acquiescence’ is simply one of a timing. Consent, if it
occurs,;precedes the wrongful taking or retention. Acquiescence,
if it occurs, follows it. In each case it may be expressed or it
may be inferred from conduct, including inaction, in circumstances
in which different conduct is to be expected if there were no
consent or, as the case may be, acquiescence. Any consent or
acquiescence must, of course, be real. Thus a person cannot
acquiesce in a wrongful act if he does not know of the act or does
not know that it is wrongful. It is only in this context and in
the context of a case in which it is said that the consent or
acquiescence is to be inferred from conduct which is not to be
expected in the absence of such consent or acquiescence, that
the knowledge of the allegedly consenting or acquiescing party is
relevant and, to use the words of Thorpe J, `the whole conduct and
reaction of the husband must be investigated in the round.’ Such
considerations do not arise in this case because the father’s
letter of 23 September 1991 is incapable of any construction other
than a clearly expressed acquiescence and, unlike Re A (minors:
abduction) [1991] 2 FLR 241, was so construed and believed by the
mother. In agreement with Thorpe J, I consider it clear that this
was not affected by anything said in the telephone conversation of
24 September 1991. The father cannot be heard to say that he had
an intention not to acquiesce which he kept secret from the
mother, any more than in other circumstances it would be open to
the mother to say, and perhaps to prove, that the father had at
one time had an intention to acquiesce which was kept secret from
her. On the evidence I think that we are bound to hold that the
father acquiesced by writing the letter of 23 September 1991.

The question has been raised of whether an acquiescence can
be withdrawn. I think that it cannot, in the sense that once
there is acquiescence the condition set out in art 13 is
satisfied. On the other hand an apparent acquiescence followed
immediately by a withdrawal may lead the court to question whether
the apparent acquiescence was real or whether it was the product
of emotional turmoil which could not reasonably be interpreted as
real acquiescence. That apart, the only relevance of the time
which elapses between acquiescence and a purported withdrawal of
the acquiescence is in the context of the exercise of a discretion
whether to return the child to the jurisdiction of the courts of
country A in order to enable those courts to make decisions as to
its future. In this case this period lasted from 27 September
until 6 December 1991 when the proceedings were served upon the
mother.

I would set aside the order of Thorpe J and remit the case to
the High Court for consideration, under the discretion which
arises under art I3 of the convention, of whether the children
should or should not be returned to the jurisdiction of the
Australian courts. It is only if he decides not to do so, that he
will be called upon to consider how to exercise a wardship
jurisdiction.

Appeal allowed. No order for costs. Leave to appeal to the House
of Lords refused.

26 February. The Appeal Committee of the House of Lords (Lord
Keith of Kinkel, Lord Ackner and Lord Lowry) refused leave to
appeal.

Mary Rose Plummer Barrister.

COMMENT BY: William M. Hilton, CFLS

It is accepted by the court that the taking of the children was a
“Wrongful Removal” from Australia and that the intent of The
Convention is to return children to their habitual residence
unless there is, as BALCOMBE LJ states, an “. . . exceptional case
that the court should have a discretion to refuse to order an
immediate return. . .”

The court seems to take the father, the victim of the wrongful
removal, to task for concealing the fact that he was taking legal
steps to cause the children to be returned to their habitual
residence in Australia, the avowed purpose of The Convention.

The reality is that the mother had abducted the children by
sneaking them out of Australia. There is no reason to believe
that, should she be aprised of the action to recover the children
by the father, she would not further conceal them. Indeed, as any
Mental Health Professional will attest, it is more probable than
not that she would take steps to conceal the children should she
become aware of the actions of the father to lawfully return the
children to the children’s habitual residence.

——————–
1. Article 13, so far as material, is set out at p 936 a to c,
post.