UK – RE AZ – 1993

UK – RE AZ – 1993 (1992) (Return denied on appeal) This is the decision of the appeals court for the above case, Intra3_uk.txt.

Re AZ (A Minor)(Abduction; Acquiescence)l [1993] 1 F.L.R. 682
2 International Abduction [UK 1993]

Re AZ (A Minor)(Abduction; Acquiescence)
Court of Appeal
Sir Donald Nicholls V-C, Butler-Sloss LJ
Sir Michael Kerr

29 Jul 1992

<* page 682>

Child abduction – Acquiescence – Child wrongfully retained
and cared for by mothers sister – Whether father acquiesced
in child’s retention – Whether father having sufficient
knowledge of rights for acquiescence to be established
-Hague Convention on the Civil Aspects of Child
International Abduction 1980, as enacted by the Child
Abduction and Custody Act 1985, Sch 1, Art 13(a)

001 The child, an American citizen. was born in Germany in
February 1991 and was habitually resident there. His father
was an American Air Force sergeant stationed in Germany and
his mother was English. In October 1991 the mother, with the
fathcr’s consent, took the child to England to stay with her
family. Once thcrc she decided not to return. She left The
child with her sister. The father, who was on good terms
with the mother’s family, asked the aunt to look aftcr the
little boy until he came to England for Christmas. On 19
December 1991 the aunt applied ex parte for a residence
order and a prohibited steps order. The father was served
with the orders on arrival in England and did not contest
them. However, be initiated divorce proccedings in
California in which he asked for care and control of the
child. Before returning to Germany at the end of December
1991 he executed a power of attorney, effective for one
year, in favour of the aunt to deal with the health, welfare
and education of the child. He did not attend a directions
hearing regarding the aunt’s application for the care of the
child and indicated to her solicitor that he was minded not
to contest the proceedings. He visited his son on a monthly
basis at the aunt’s home. It was not until the end of March
1992 that he told the family that he intended io take the
child back to Germany. He took no further action until 13
May 1992 when hc issued an originating summons under the
Hague Convention seeking the return of the child to Germany.
The judge found that the child had been wrongfully retained
in England. She found that the father had procrastinated but
had not at any time acquiesced either actively or passively
in the child’s retention, stating, in reliance upon a
passage from the judgment of Stuart-Smith LJ in Re A
(Minors) (Abduction; Acquiescence) [1992] 2 FLR 14 that
acquiesecnce had to be given “in the knowledge of rights
which had been breached and rights that could be enforced”.
Accordingly, she ordered the return of the child to Germany,
his country of habitual residence. The child’s mother,
uncle and aunt appealed on the main ground that the father
had acquiesced in the retention of the child within Art
13(a) of the Convention.

002 Held – allowing the appeal – in holding that in order
to acquiesce it must be shown that the applicant had
specific knowledge of the Convention, the judge had set to
high a standard on the requirement uf knowledge of rights.
On an overall assessment of the situation, viewed
objectively, the father was an intelligent man capable of
seeking advice, who made a c1car decision to leave the child
where he was for the time being. There was no inconsistency
between that decision and his application to the Caiifornian
court for care and control at a later date. Acquiescence had
to be conduct inconsistent with the summary return of the
child to the place of habitual residence. It did not have to
be a long-term acceptance of the existing state of affairs.
Thr father had acquiesced in the retention of the child in
England and, accordingly, thr direction to return him to
Germany would be set aside and the case remitted to the High
Court for consideration whether or not he should be returned
to the jurisdiction of the German courts.

<* page 683>

Statutory provision considered

Hague Convention on the Civil Aspects of International Child
Abduction 1980, Art 13, as enacted by Child Abduction and
Custody Act 1985

Case referred to in judgment

A (Minors) (Abduction: Acquiescence), Re [1992] 2 FLR 14

APPEAL from an order of Booth J sitting in the Family
Division of the High Court

Patrick Eccles QC and Camilla de Sousa-Turner for the mother
Andrew Ritchie for the father

Cur adv vult


003 This appeal arises from the application of the Hague
Convention to a child found by Booth J on 21 May 1992 to
have been wrongly retained in England by his mother and her
family. The judge ordered his return to Germany. The aunt of
the child is the appellant, but a complication has arisen in
that the mother, who up to now has played no part, has come
forward and asked for leave to intervene in the appeal and
to file a notice of appeal. We have given leave. The aunt
now believes that the mother should take over the care of
the child from the aunt.

004 Z is the son of an American Air Force sergeant and an
English girl. His parents were married on 4 February 1989 in
Nevada, USA. His father has been stationed in Germany since
January 1991. Z was born there on 4 February 1991 and is 17
months old. He is an American citizen, but until he came to
England in 1991 he was habitually resident in Germany. His
mother, with the consent of his father, brought him to
England on 29 October 1991 to stay with her family. The
father was to join them for Christmas and they were due to
fly back together on 21 January 1992. The marriage was not
however a stable one; in October 1991 the mother met and
formed a relationship with another American airman stationed
in England. She decided not to return to Germany. She left
her child with her mother who was unable, through
ill-health, to manage. The mother’s sister (the aunt) and
her husband stepped into the breach and took over the care
of Z. The father was on manouevres in Spain, but he was
contacted in November 1991 by the mother’s family with whom
he was on excellent terms. They urged him to come to England
immediately to sort everything out, but for various reasons
it was not convenient for him to come then. He asked the
aunt to look after Z until he came to England at Christmas
and the judge found that he agreed willingly to the aunt’s
proposals. On 19 December 1991 the aunt applied ex parte to
the Oxford County Court for a residence order and prohibited
steps order (under the provisions of the Children Act 1989)
and both orders were made. The judge found that the purpose
of the orders was to prevent the father from taking Z back
to Germany. The father was served with the orders on his
arrival in England. He filed an answer in which he disputed
some immaterial statements, but otherwise indicated that
there was nothing else relevant for the court to know and
answered ‘yes’ to the question whether he agreed with the
applicant’s plans for the child. At this time he took no
legal advice about the position in England, although the
aunt suggested that he should do so. However, he arranged to
be provided with <* page 684> Californian divorce papers
which were notarised at an RAF base and initiated divorce
proceedings in California which were filed in February 1992,
in which he asked for joint custody to the mother and
himself, but that he should have the care and control of Z.
Both he and the mother signed the forms, although the mother
did not appreciate the implications over custody. Before
returning to Germany on 27 December 1991, the father
executed a power of attorney in favour of the aunt to deal
with the health, welfare and education of Z, which was
effective for a year. He also handed to the aunt the child’s
social security papers and his birth certificate. There was
a directions hearing fixed for the aunt’s application for
the care of Z on 17 January 1992 and the father telephoned
the aunt’s solicitor on 13 January 1992 and asked if he
should come to England to attend the hearing. According to
the attendance note of the solicitor, the father said he was
minded not to contest the proceedings and did not wish to
file an affidavit. He was advised to attend the final
hearing on 14 May 1992, but that it was not necessary to
attend the directions hearing. He did not attend. The aunt’s
lawyers believed her application would not be opposed. The
father came to England to visit his son on a monthly basis
at the aunt’s home. It was not until 26 March 1992, after an
argument, that the father communicated to the maternal
family his intention to take over the care of Z and return
with him to Germany. The parties were immediately
reconciled, but the aunt became concerned as to the plans of
the father and on 1 May 1992 her solicitor wrote to the
father who did not reply to the letter. He issued the
originating summons under the Hague Convention (Child
Abduction and Custody Act 1985) on 13 May 1992.
Consequently, the county court proceedings could not
continue. The father’s application came before the judge on
21 May 1992 and he sought the return of Z to Germany with
him. The judge found that the child had been wrongfully
retained in this country, either when the mother decided not
to return or when the aunt took the county court
proceedings. She also found that there had been no
acquiescence by the father and consequently she had no
option but to order the child to return to Germany.

004 The purpose of the Hague Convention is to discourage
child abduction and to return a child wrongfully removed or
retained as quickly as possible to the country of his
residence in order that the courts of that country should
decide where and with whom the child should live.

005 Despite some argument on behalf of the aunt, in my
view this appeal does not turn on wrongful retention,
habitual residence, or consent, but on acquiescence and I do
not propose to set out the arguments on the first three
points. In my judgment, the judge was entirely justified in
her conclusions under Art 13 that the child was wrongfully
retained and that his habitual residence was Germany.
Whether the courts of Germany are best suited to deal with a
child of an American father and an English mother
adventitiously resident in Germany when the child was born
is a matter for the parties and the German court. On the
application of the Hague Convention, Germany is the country
of habitual residence of Z and based on the judge’s
findings, unless Art 13 applies, the judge is bound to order
the return of the child under Art 12.

006 The court has however a discretion not to return the
child if one of the situations set out in Art 13 is proved.
In this appeal Art 13(a) is relied upon:

<* page 685>

‘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, institution or
other body which opposes its return establishes

(a) the person, institution or other body having
the care of the person of the child . . . had
consented to or subsequently acquiesced in the
removal or retention . . . ‘

007 According to Lord Donaldson of Lymington MR in Re A
(Minors) (Abduction: Acquiescence) [1992] 2 FLR 14 at p 29:

‘In context, the difference between “consent” and
“acquiescence” is simply one of timing. Consent,
if it occurs, precedes the wrongful taking or
retention. Acquiescence, if it occurs, follows

008 It is clear that the present case turns on
acquiescence. The judge relied on and applied a passage from
the judgment of Stuart-Smith LJ at p 26 of the same

‘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

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 party’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

009 On the present facts the judge found that the father
procrastinated and took his time, which she found very
significant, that he disliked confrontation and was fond of
his wife’s family, that he prevaricated and was from time to
time ambivalent. She was impressed by the fact that he
indicated in the Californian divorce papers an intention to
take over the care of his son. He had made some inquiries as
to how to care for him on the United States Airbase in
Germany. She found that his intention in leaving the child
with the aunt was to have him in a safe place until he could
take over his care. She also found that after the court
documents were served he felt he did not have any choice but
to leave his son with the aunt until the <* page 686>
hearing on 17 January 1992. She applied the words of
Stuart-Smith LJ to the present case and indicated that
acquiescence had to be clear, without doubt, unequivocal,
not explicable in any other way:

‘and it has to be done in the knowledge of rights
that have been breached and rights that can be
enforced. It has to be an informed acquiescence
or otherwise it has to be such inactivity and
such silence as must lead the court to infer
acquiescence over a period of ti me, in
acceptance of the situation.’

010 She concluded:

‘I do not find anywhere in the evidence at all
that there was an active or indeed a passive
acquiescence to Z’s retention in this country.’

011 Mr Ritchie, in his excellent argument to us, submitted
that the aunt had to prove four points:

1. active or passive acceptance by the father of the
wrongful retention;

2. knowledge that the retention was wrongful and that he
had a right to enforce a summary return to Germany and with
that knowledge was not enforcing that right;

3. clear and unequivocal acts;

4. the aunt believed that he was accepting the situation.

012 In considering points 1 and 2 together and the actions
and inaction of the father, it is astonishing to me that if
he was not in agreement with the aunt’s plans for his son,
the father did not either attend the hearing on 17 January
1992, or swear an affidavit or make a statement, or even
answer the application with an indication on the form that
at some stage he wanted to take over the care of the child
himself. He made corrections to the form but no dissent from
the aunt’s proposals. He indicated agreement to the aunt’s
solicitor and he executed a power of attorney in favour of
the aunt. He also handed to the aunt the child’s birth
certificate and social security book. He is a sergeant in
the United States Air Force and accustomed to executing
powers of attorney, which he himself proposed. He was able
to initiate divorce proceedings in California and get his
wife to sign them in circumstances which the judge found
unsatisfactory for the wife. But none the less it is to be
inferred that he did not have sufficient knowledge that his
rights had been breached and that they could be enforced.
The father knew that he had rights under American State law,
but we are asked to accept that he believed he had no
redress in courts other than the Californian ones.

013 I do not agree with the judge nor with the argument of
Mr Ritchie that in order to acquiesce it must be shown that
the applicant had specific knowledge of the Hague

014 The Master of the Rolls in his judgment to which I
referred earlier continued:

‘In each case (consent or acquiescence) it may be
expressed or it may be inferred from conduct,
including inaction, in circumstances in which <* page 687> 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”.’

015 Both the Master of the Rolls and Stuart-Smith LJ refer
to the necessity for knowledge of the facts and that the act
is wrongful. They did not take the further step of the
necessity of knowledge of rights under the Hague Convention.
In my judgment the judge misdirected herself in stating that
‘acquiescence has to be done in the knowledge of rights that
have been breached and rights that can be enforced’. That
statement goes too far. If a father knows that his son has
been retained in another country against his wishes and he
wants him back and has the capacity to and is able to seek
legal advice as to what proceedings he might be able to
take, the factual situation has arisen upon which he may
objectively be considered to have sufficient knowledge
either to consent or to acquiesce in the situation which has

016 The present facts are stronger than those in Re A and
the considered answers of the father to the application by
the aunt, after being advised to seek legal advice from an
English lawyer, coupled with the evidence that the father is
an intelligent man capable of seeking advice who, within a
few days, started the Californian proceedings, leads me
irresistibly to the conclusion that he was making a clear
decision to leave Z with the aunt for the time being. That
period was not limited to a few days or even weeks because
he did not attend the hearing in January 1992 or make any
move to ask for the child back until April 1992 when he
telephoned the American Embassy in London and was sent the
Hague Convention pack. From the granting of the power of
attorney it can be inferred that the period would not exceed
one year.

017 Active acquiescence, which I believe this to be, has
to be clear but it does not have to be an acceptance of an
unchangeable state of affairs. I see nothing incompatible
with acquiescence to the continuance of a wrongful and an
application to the Californian court for custody and
retention care and control to himself which would take place
at a later date. This father recognised the good care being
taken of his son by the aunt and there was no urgency in his
mind in changing the existing arrangements until either a
court order or, as it turned out, a change of heart.
Acquiescence has to be conduct inconsistent with the summary
return of the child to the place of habitual residence. It
does not have to be a long-term acceptance of the existing
state of affairs.

018 It seems clear that until the disagreement in March
1992 between the father and the mother’s family, the family
believed that the father was agreeing to the child remaining
with the aunt indefinitely. He took no steps to dispute the
care of the child by the aunt until he launched the present
ap lication in May 1992. In my view his acceptance of the
existing <* page 688> position was clearly communicated to
and recognised by them and was not in any way incompatible
with a suspicion that that he might come back at a later
stage and then ask to take over the care of the child.

019 I have hesitated to differ from the inferences drawn
by the most experienced trial judge, particularly since she
heard oral evidence from the father and the aunt. In my
judgment, however, she was over-influenced by the
observations of Stuart-Smith LJ, which in my view she
misinterpreted. She set too high a standard for the
requirement of knowledge of rights. She also concentrated
overmuch in a subjective approach to the evidence of the
father, rather than an overall assessment of the whole
situation. I do not believe that this is a case of
inferences to be drawn from various strands of the conduct
of the father seen primarily from his point of view which
put together form a pattern of non-confrontation,
prevarication and procrastination. Standing back and looking
at the father’s case, in my view it is a clear case of
acquiescence which was accepted and acted upon by the
mother’s family.

020 This is an unusual case, with the dispute in the court
below between the father and the aunt. It is now complicated
by the re-emergence of the mother over whose interest in the
child there have to be question-marks. Her intervention
does not alter the resolution of the immediate issue under
Art 13, but it may well have a marked effect upon the
exercise of the D court’s discretion as to the future
well-being of Z.

021 I would allow this appeal, set aside the direction to
return Z forthwith to Germany and remit the case to the High
Court for consideraton whether the child should or not be
returned to the jurisdiction of the German courts.


022 I agree with the judgment of Butler-Sloss LJ that this
appeal should be allowed on the grounds of the father’s
acquiescence to the retention of Z in the care ofhis atint
and Uncle so as to preclude the father from claiming the
right to have the boy returned to Germany under the Hague

023 The facts of the case are unusual, including the
matters on which the judge relied as constituting a wrongful
retention. In that regard she said:

‘First, there is the question whether there was
there a wrongful retention. There are two points
of time, in my judgment, when Z was retained in
this country wrongfully. Wrongful retention for
the purpose of the Convention means retention “in
breach of the 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”. The rights of custody, according to
the German civil code, vest in the mother and
father, they being married. The first point of
time when Z’s retention in this country was, in
my judgment, wrongful was at the point that the
mother decided not to return to Germany; that is,
in November 1991. That was a unilateral decision
taken by her. It was in breach of the father’s
custody rights because she H did not intend to
return Z to Germany, in breach of the agreement
that they had previously come to. The mother
decided, without consultation with the father,
that Z should stay with [the aunt and her
husband]. The mother says that had the father
come over to this country and at that <* page 689> point required or demanded or asked that Z
should go back to Germany with him, she would not
have objected and neither would any of her
family. But it seems to me that by her unilateral
decision to keep the child in this country
herself and not return there was a wrongful

The second, and perhaps the stronger, of the two
points of time when the retention can be
considered to be wrongful, was on 19 December
1991 when, on the ex parte application to the
Oxford County Court, the aunt . . . obtained,
first, the residence order (that Z should reside
with er until 17 January 1992) and, secondly, the
prohibited steps order (that he should not be
removed from the jurisdiction). It was a
unilateral decision to make that application and
it was not taken in consultation with the father.
The most that the father had done was to agree
that until he could come to this country Z should
remain with [the aunt and her husband] and not
live with the mother. He had agreed to nothing
else. He certainly had not been asked, nor had he
agreed, to the prohibited steps order being

024 Without deciding the point, particularly since it has
not been pressed in argument, I am doubtful about the first
ground on which the judge relied. It seems to me that the
uncommunicated decision which the mother took in her own
mind in November 1991 not to return the boy on 21 January
1992 could hardly constitute a wrongful retention in
November 1991. It was at most an uncommunicated intention to
retain him in the future from which she could still have
resiled. But on balance I am driven to agree with the judge
on the second ground, which she recognised to be the
stronger one, although it seems odd that an otherwise lawful
and unconcealed application to a court can constitute a
wrongful retention. However, the unusual nature of this act
as constituting a wrongful retention appears to me to have
some relevance to the question of acquiescence, as mentioned

025 I think, with respect, that the judge erred in three
respects in her conclusion that there was no sufficient
acquiescence by the father on the facts of this case.

026 First, I think that she approached the question of his
acquiescence by placing too much emphasis on what she
considered to be his subjective state of mind instead of
concentrating on his conduct, viewed objectively, and on the
effect which, to his knowledge, it conveyed to [the aunt].
Thus, the judge said:

‘The mother gave a piece of evidence which I
think showed some insight into the father’s
character. She said of him, “He tends to
procrastinate, he is very short-tempered and
insecure. He says he will do something but he
doesn’t. He takes his time”. I bear in mind that
piece of evidence on considering the situation
now in relation to the questions that I have to

027 However, for the reasons explained by Butler-Sloss LJ,
the father’s outward conduct, until at least March 1992, was
in all respects only consistent with his acquiescence to the
boy remaining in the care of the aunt for the time being, as
opposed to insistence upon the boy’s immediate <* page 690>
return to Germany, and that is what the aunt understood,
perfectly reasonably on the facts.

028 Secondly, I think that on the facts of this case the
judge gave too much weight to the consideration that
acquiescence requires knowledge that the act of retention is
wrongful within the scope of the Hague Convention. The
aunt’s application to the court was only wrongful in a
technical sense and was not unlawful. It was directed in
part against the mother as well as the father, and the
affidavit in support contained no inaccuracies. But, even
assuming that it was wrongful for the purposes of the
Convention, as I do, it must have been perfectly obvious to
the father, when he was asked to fill in the form headed
‘Respondents’ Answer’ for the purposes of an inter partes
hearing, that he had every right to object to everything
connected with the application. For this purpose he needed
no legal advice. The questions which he was asked spoke for
themselves, at any rate to a person of his intelligence and
experience. He objected to the contents of the aunt and
uncle’s statements in their application form and affidavit
in certain respects, but expressly signified his agreement
with all those which were material to the question whether
he acquiesced to Z remaining in the aunt and uncle’s care
for the foreseeable future.

029 In these circumstances, I cannot see that his conduct
connoted anything other than acquiescence to the status quo
for the time being. True, he did not agree to anything
permanent, as one can see from one of his affidavits, where
he said:

‘When I signed the documents [that is the form]
it was never my intention that the child should
remain in this country permanently and I did not
mean in any way to give that impression to the
defendants or to the court.’

030 I emphasise the word ‘permanently’ in that passage,
for that is not the issue with which this appeal, or the
Convention, is concerned. That brings me to the final and
most important matter on which I cannot agree with the
judge. She appears to have attached great weight to the
fact, which is undoubted, that at all material times the
father intended to seek joint custody and sole care and
control through the Californian courts. But this is not
inconsistent with his acquiescence to Z remaining,
meanwhile, in the care of the aunt and uncle. I think that
his conduct demonstrated that he was acquiescing to this, as
opposed to seeking the summary return of the boy to Germany
and having his future decided by a German court. That is the
aspect – summary return to Germany – which is relevant to
the Convention and to which the question of acquiescence
falls If to be directed. The father’s state of mind, judged
objectively as well as, in my view, subjectively, was to
leave the boy with the aunt pending a hoped-for successful
outcome of the Californian proceedings; not to seek his
return to Germany in the interim.

031 Accordingly, I would also allow this appeal.


032 I also agree and I add only a brief comment on the
concept of acquiescence in the removal or retention of a
child. The context is an exception to the general Convention
rule of summary and speedy return of a child who has been
wrongfully removed <* page 691> to or retained in another
contracting State. If the person who had care of the child
consented to the removal or retention he cannot afterwards,
when he changes his mind, seek an order for the summary
return of the child pursuant to the Convention. Likewise if
he acquiesces. It seems to me that the underlying objectives
of the Convention require courts to be slow to infer
acquiescence from conduct which is consistent with the
parent whose child has been wrongly removed or retained
perforce accepting, as a temporary emergency expedient only,
a situation forced on him and which in practical terms he is
unable to change at once. The Convention is concerned with
children taken from one country to another. The Convention
has to be interpreted and applied having regard to the way
responsible parents can be expected to behave. A parent
whose child is wrongly removed to, or retained in, another
country is not to be taken as having lost the benefits the
Convention confers by reason of him accepting that the child
should stay where he or she is for a matter of days or a
week or two. That is one edge of the spectrum.

033 At the other edge of the spectrum the parent may,
again through force of his circumstances, accept that the
child should stay where he or she is for an indefinite
period, likely to be many months or longer. There is here a
question of degree. In answering that question the court
will look at all the circurnstances and consider whether the
parent has conducted himself in a way that would be
inconsistent with him later seeking a summary order for the
child’s return. That is the concept underlying consent and
acquiescence in Art 13. That is the touchstone to be

034 I am not able to accept that, in applying this test,
there cannot be acquiescence unless the parent knew, at
least in general terms, of his rights under the Convention.
Whether he knew or not is one of the circumstances to be
taken into account. The weight or importance to be attached
to that circumstance will depend on all the other
circumstances of the particular case.

035 I turn to the present case. I agree that here the
father did acquiesce in the retention of Z in England for
the purposes of Art 13. The factor which weighs most with me
is the attitude the father, an intelligent man, adopted in
the English court proceedings and regarding the hearing of
17 January 1992. He accepted that Z would stay with the aunt
for the indefinite future and he accepted that in the
context of court proceedings when he must have known that if
he disagreed with Z staying in England in that way
indefinitely, he could and should say so. That conduct seems
to me inconsistent in this case with the father seeking to
claim the summary return of Z to Germany. The very
experienced trial judge fell into error in her approach in
this case.

036 I too would allow this appeal. I add only this, and it
really goes without saying, that there should be no
publication of any facts which would be likely to lead to
the identification of Z.

Appeal allowed. No order for costs, save legal aid taxation
of all parties.

Solicitors: Pritchard Joyce & Hinds for the father
Bower & Bailey for the mother and aunt