Re S (Minors) (Abduction: Acquiescence) (UK 1994)[1994] 1 FLR 819, [1994] Fam Law 424, [1994] 2 FCR 945
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RE S (MINORS) (ABDUCTION: ACQUIESCENCE)
Court of Appeal
[1994] 1 FLR 819, [1994] Fam Law 424, [1994] 2 FCR 945
HEARING-DATES: 3 February 1994
CATCHWORDS:
Child abduction — Acquiescence — Mother removing children
wrongfully from country of habitual residence — Father failing to
take proceedings under Hague Convention for 8 months because of
erroneous legal advice — Whether father’s inactivity constituting
acquiescence — Hague Convention on the Civil Aspects of
International Child Abduction 1980, Art 13(a), as enacted by the
Child Abduction and Custody Act 1985, Sch l
HEADNOTE:
This was an appeal concerning three boys, aged 9, 8 and 4, whose
parents were British-born immigrants to Australia. Following the
breakdown of the marriage, the mother removed the boys to England
wrongfully within the meaning of Art 3 of the Hague Convention.
Eight months later, the father applied under the Convention for a
summary return order under Art 12. The mother resisted the order
on the ground that the father by his delay in bringing the
proceedings had acquiesced in the removal for the purposes of Art
13(a). The judge, accepting the father’s explanation that his
inactivity for a period of 8 months had been due to the erroneous
legal advice of his solicitors, held that that explanation
negatived the prima facie inference of acquiescence to which the
father’s previous inaction had given rise, and accordingly that he
had no jurisdiction to refuse a return order. The mother appealed,
contending: (1) the question whether an act (or forbearance to
act) on the part of the aggrieved parent had amounted to
acquiescence was a question to be judged objectively by the court
solely in the light of its inferred effect upon the mind of the
removing parent; (2) alternatively, the question was to be judged
objectively in the light of such inferences as could be drawn by
any informed party coming to the case from outside; (3) the
objectiveness required under either approach precluded any inquiry
into the requesting parent’s actual state of mind.
Held — dismissing the appeal — in order to determine the issue
of acquiescence, the central question was whether the aggrieved
parent had conducted himself in a way inconsistent with his later
seeking a summary return, that consideration to be undertaken by
looking at all the circumstances. Acquiescence was primarily to be
established by inference drawn from an objective survey of the
acts and omissions of the aggrieved parent, but the element of
subjective analysis was not wholly to be excluded. There were
bound to be cases where it was proper for the court to embark,
with suitable caution, on an inquiry into subjective elements
known only to the aggrieved parent The judge had applied the right
test and had been fully justified in having regard to the
erroneous advice given to the father concerning his rights under
the Convention as a circumstance relevant to the question whether
or not he had acquiesced in the wrongful removal, There was no
reason to interfere with his decision.
NOTES: Statutory provisions considered
Hague Convention on the Civil Aspects of International Child
Abduction 1980, Arts 12, 13
CASES-REF-TO:
A (Minors) (Abduction: Custody Rights), Re [1992] Fam 106, [1992]
2 WLR 536, sub nom A (Minors) (Abduction: Acquiescence), Re [1992]
2 FLR 14, [1992] 1 All ER 929, CA
A and Another (Minors: Abduction), Re [1991] 2 FLR 241, CA
AZ (A Minor) (Abduction: Acquiescence), Re [1993] 1 FLR 682, CA
B v K (Child Abduction) [1993] 1 FCR 382, [1993] Fam Law 17
Kammin’s Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd
[1971] AC 850, [1970] 3 WLR 287, [l970] 2 All ER 871, HL
S (A Minor) (Abduction: Custody Rights), Re [l993] Fam 263, [1993]
2 WLR 775, sub nom S v S (Child Abduction) (Child’s Views) [19923
2 FLR 492, sub nom S (A Minor) (Abduction), Re [1993] 2 All ER
683, CA
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211
COUNSEL:
J Munby QC and D Pears for the mother; H Setright for the father
JUDGMENT-READ:
Cur adv vult
PANEL: Neill, Hoffmann, Waite LJJ
JUDGMENT-1:
WAITE, LJ
This appeal concerns three boys aged 9, 8 and 4. Their parents are
British-born immigrants to Australia. Following the breakdown of
the marriage, the mother brought the children to England (where
their maternal grandmother still lives) without the permission of
the father. That is conceded to have been a wrongful removal
within the meaning of Art 3 of the Hague Convention. Eight months
after the date of removal, the father started proceedings under
the Convention for a summary return order under Art 12. The mother
sought to establish jurisdiction in the English court to refuse
the order on the ground that the father had by his delay in
bringing the proceedings acquiesced in the removal for the
purposes of Art 13(b); and also, in the case of the eldest boy
alone, on the ground that he was objecting to a return to
Australia and had reached an age and degree of maturity at which
(for the purposes of the same Article) it is appropriate to take
account of his views. Both contentions failed. The judge held that
he had no jurisdiction to refuse a return order, from which
finding the mother now appeals to this court. .
The objects of the Convention are well known. They are to spare
children already suffering from the breakdown of their parents’
marriage the disruption which inevitably follows when one parent
attempts to secure for himself or herself an advantage in future
issues of care, residence or forum conveniens by an arbitrary move
to (or retention in) another jurisdiction.
The governing Articles for the purposes of this appeal are 12 and
13 which read as follows:
‘Article 12
Where a child has been wrongfully removed or
retained in terms of Article and, at the date
of 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.
Where the judicial or administrative authority
in the requested State has reason to believe
that the child has been taken to another State,
it may stay the proceedings or dismiss the
application for the return of the child.
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,
institution or other body which opposes its
return establishes that —
(a) the person, institution or other body
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
remove, 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.
In considering the circumstances referred to in
this Article, the judicial and administrative
authorities shall take into account the
information relating to the social background
of the child provided by the Central Authority
or other competent authority of the child’s
habitual residence. ‘
The father is 36 and the mother 29 They were both born in England
and were married in this country on 5 November 1983. They
emigrated to Western Australia in May 1986, by which date the two
eldest boys, N and C, had been born on 20 December 1984 and 16
December 1985 respectively. Their son P was born there on 23 June
1989. It is not disputed that they were settled in Australia, and
that by virtue of s 63(f)(1) of the Australian Family Law Act 1975
both of the parents were guardians of the children and had their
joint custody.
The marriage had run into difficulties by the beginning of 1993.
On 17 March 1993 the mother, without warning to the father,
removed the children by air to England, where she went with them
to live near Ringwood and entered the older boys at a local
primary school. Plans were made for P to follow them there in
January 1994.
Very shortly after the removal, the father, on 23 March 1993,
wrote a letter to the mother at her own mother’s address in
England, saying that he felt shocked and pained by what had
happened, and adding:
‘Yesterday I saw a solicitor and was advised
that you have broken some international
convention by removing children from this
country without both parents’ consent. I was
advised to seek legal aid to [bring] you back.
He also told me to seek counseling as I was
weeping and shaking uncontrollably. He told me
that no court would favour what you’ve done,
and the longer you take to talk with me, the
worse tit] is going to look.
I still love you dearly and I shall never stop
loving my dear sons, After nearly 10 years, I
deserve better than this hell that both you and
your mother are forcing me through.
Please phone me or arrange that I can phone you
immediately. This is extremely urgent. For the
kids’ [sake] I don’t want to start trouble. I
would also love to talk to the kids but at this
time I don’t know if I Could] hold myself
together at the sound of their voices. I would
like to try. I have the right surely.
If I don’t hear from you very soon, verbally
and satisfactorily, then action would have to
begin, one way or another.’
That letter crossed with one written to the father by the mother
explaining her reasons for leaving him. The father was later to
depose in an affidavit sworn in these proceedings that he had
followed his first letter up with two or three subsequent letters,
all asking the mother to return, but he received no reply to them.
It is not suggested that they contained any further threats of
summary court action.
On 30 March 1993 the mother’s English solicitors wrote to the
father with service of divorce proceedings, and giving him notice
that they would be applying in England for a residence order in
respect of the boys. They stated that the mother was quite happy
to allow him contact with the children in England, subject to his
confirming that they would not be removed from the jurisdiction of
the English court.
The father consulted solicitors in Australia on l April 1993. In
his affidavit in the child abduction proceedings he has summarized
the advice he then received in these terms:
‘I was advised by Young and Young that I had
some rights under Australian law to have the
children returned to my care but they told me
at my first meeting that it would be extremely
expensive to take such proceedings and they
would require the sum of A$5000 on account
before they could even obtain legal aid on my
behalf. They suggested that I try and come to
some arrangement or agreement with the
defendant and I wee deterred by the amount of
money that they wanted from me before they
could act. As I have already said, although I
had managed to substantially reduce the debt on
my business, it had been a struggle and I would
have had to sell up in order to realise my debt
and raise the sum of A$ 5000. I am advised by
my present solicitor that the advice I received
from Young and Young with regard to the very
high cost of applying is wholly incorrect as
legal aid is available in these proceedings in
England without any form of means or merits
test. I was certainly not told that all that
had to happen was for a request to be made to
the central authorities in Australia who in
turn would contact the central authorities in
England to enable proceedings to be issued on
my behalf.’
The father’s solicitors wrote to the mother’s English solicitors
in reply to their letter on 2 April 1993 acknowledging service of
the divorce proceedings, and adding:
‘To say the least, our client is astounded at
your client’s conduct in taking the children
out of the jurisdiction without his consent. Be
that as it may, our client is giving
consideration to all options at this stage
presently open to him and we propose to
communicate with you once we have his further
instructions.’
The father’s subsequent dealings with solicitors in Australia were
described in his affidavit evidence as follows:
‘By the end of June 1993 I had written
countless letters to the defendant ant tried
every means possible to contact her without
success. By the beginning of July 1993 } had
considered my position at great length and had
come to the conclusion that the marriage had
irretrievably broken down but that I wished to
be divorced in Australia and not in England. I
wanted a clean break between th’ defendant and
myself and if this could be achieved, was even
prepared to consider not applying for the
immediate return of the children. I was in a
very distressed and unhappy state which in turn
was proving disastrous for my business. I did
not believe that I could raise the deposit of
A$ 5000 and hence I was so despondent about
securing the return of the children. However,
by August 1993 I contacted Young and Young
again to ask about the procedure to secure the
return of the children under the child
abduction legislation. However, despite various
attempts to contact him, my solicitor did not
get back to me until the end of September 1993.
He said that because of various court
commitments and other matters which were going
on at that stage, he was not able to answer my
calls. In the early part of October 1993 I was
contacted by Heather Nicholls of Young and
Young who I was told was temporarily taking
over the conduct of my file. However, by this
time I had consulted Formby & Garvey,
solicitors of Bunbury, Western Australia on 18
October 1993. This was purely in connection
with the return of the children to Australia.
Their initial advice was that it would be
difficult to obtain an order in respect of the
eldest two children as they were British and
not Australian. I was advised initially by Mr
Formby himself who told me that a law student
who had just finished her exams would shortly
be joining the practice and she would know more
about the abduction legislation than he. When
she eventually arrived, she advised me the I
could apply to the central authority in
Australia who in turn would contact the English
central authority and an application would be
made on my behalf for an order that the
children return to me.’
On that advice, the father invoked the Hague Convention through
the central authority in Western Australia, as a result of which
the originating summons seeking a return order was issued here on
9 November 1993.
The application came before the court for directions on 23
November 1993, by which date the mother had filed an affidavit
raising the two objections already mentioned — namely the
father’s alleged acquiescence and the objections of N to a return
to Australia. Douglas Brown J made an order, in that latter
connection, that a court welfare officer should interview N in
London for the purpose of reporting on the questions, first, of
whether he has attained an age and degree of maturity at which it
is appropriate to take account of his views and, secondly, of
whether he objects to being returned to Australia.
The main hearing began before Singer J on 13 December 1993. It was
dealt with on the affidavit evidence of the parents, and the oral
evidence of the court welfare officer. The following Is the
judge’s summary of the evidence of the court welfare officer, Mr
Maines:
‘He said that N was not happy with life in
Bridgetown (Australia) and that he had referred
to frequent quarrels and unhappiness between
his parents which he had overheard. He said
that he would not wish to go back to Australia.
He knew, because he had been told so by his
grandmother, that he was to tell the truth.
He talked about his current school and compared
it favourably with that which he had left in
Australia. He gave, said Mr Maines, a fair
account of himself at his own level, but that
level was very much that of an 8-year-old in
terms of his apparent maturity.
The impression he made on Mr Maines was that he
would be an average performer in school. It was
clear to Mr Maines that he did not wish to
return to the same situation he had left in
March 1993, but that he had not given thought
to his reaction to the alternative situation to
which he might return, for instance living
apart from the father with his mother and his
brothers alone either in new house or in their
old house and seeing the father as appropriate.
Mr Maines did not think that N had considered
how often he might see his father if he lived
in England as against Australia.’
A report had been obtained by the father’s English solicitors from
the Principal of the Bridgetown Primary School which N and C had
attended until March 1993 in which N is described as ‘not mature
for his age’. The judge commented that this seemed to bear out Mr
Maines’ appraisal.
In his judgment, delivered on 21 December 1493, Singer J dealt
first with the question of N’s objections. After referring to the
authorities of Re S (A Minor) (Abduction: Custody Rights) [1993]
Fam 263, sub nom S v S (Child Abduction) (Child’s Views) [1992] 2
FLR 492 and B v K (Child Abduction) [1993] FCR 382, he continued:
‘Thus it cannot and should not be thought that
an 8- or 9-year-old cannot, simply by virtue of
his or her age, be capable of attaining a
degree of maturing which makes it appropriate
to take account of the child’s views. However,
that having been said, in this case I am far
from persuaded that N has attained the” degree
of maturity.
I reach that conclusion not only because of
what his old school, and Mr Maines have said
about him, but also because an appropriate
degree of maturity would have involved him in
contemplating (as I am satisfied that he did
not) the variety of circumstances to which he
might return before concluding his opposition.
Thus this avenue, which might lead out of the
otherwise obligatory return of the children to
Australia, is not open to the mother.’
On the remaining issue of acquiescence, the judge, after reciting
a number of cases including Re A (Minors) (Abduction: Custody
Rights) [1992] Fam 106, sub nom Re A (Minors) (Abduction:
Acquiescence) [1992] 2 FLR 14, Re Az (A Minor) (Abduction:
Acquiescence) [1993] 1 FLR 682 and W v W (Child Abduction:
Acquiescence) [1993] 2 FLR 211, directed himself that the correct
approach was that stated by Sir Donald Nicholls V-C in Re AZ (at p
691) in these words:
‘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 in
one edge of the spectrum.
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 circumstances 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 applied.’
To that statement of principle the judge then added the following
comments of his own:
‘Thus I conclude it is for the mother to
establish that the father, in fact, acquiesced.
To succeed she has to establish his state of
mind. In the more ordinary case she will do so
by his actions which may speak volumes. In the
less ordinary and more difficult case (of which
it will become apparent this is one) she has to
do so by reference to his inactivity.
It is, of course, relevant toward such a
finding that he has been silent or inactive in
circumstances where different conduct might
reasonably have been expected, But what is
reasonably to be expected must surely depend
upon his state of mind rather than the mother’s
perception of it which may be based upon
incomplete or inaccurate appreciation of the
relevant circumstances.
Similarly, conduct on his part, to be
inconsistent with a summary return to the place
of habitual residence, must be conduct judged
to be inconsistent in the light of the options
in fact available to him, rather than from the
perspective, which may be incomplete, of the
wrongfully removing parent . . .
In short, either there is acquiescence or there
is not, and the wrongfully removing parent’s
belief that there is acquiescence, whether well
or ill-founded, cannot make it so.’
The judge then summarized the events, correspondence and evidence
which I have already described. In the course of that, he
interposed the following comments on the father’s letter of 23
March 1993:
‘It is also submitted for the mother that once
the father had delivered the ultimatum, namely
that if they did not speak soon and
satisfactorily then action would have to begin
she was entitled, in the absence of any action
on his part, to conclude that he did not intend
to take any and thus that he acquiesced.
For the reasons that I have already attempted
to give I do not accept that it is the mother’s
state of mind, however reasonably she arrived
at it in the absence of actual knowledge of any
restraints on the father, which should be in
any way determinative of the question whether
or not he acquiesced.’
After his review of the evidence, the judge returned to that
question in these terms:
‘Certainly, as at the date of his first
solicitor’s letter on 2 April 1993, he was by
no means acquiescing, but was said to be
considering all options. Inactivity on his part
thereafter — admittedly inactivity over more
than 5 months — unless explained by the father
might well give rise to the conclusion that he
did, in fact, acquiesce. But the question
remains, nevertheless, in my judgment not
whether he appeared to, but rather whether he
did, in fact, acquiesce.’
The judge concluded by stating his finding on acquiescence as
follows:
‘Given that I accept his explanation for his
inactivity in circumstances where different
conduct might have been expected I am unable to
find that the mother has satisfied me that the
father did, in fact, acquiesce.’
It followed that the judge found himself to be without
jurisdiction to consider whether there were any grounds for
refusing a return order, and he made an order in the usual form
for the return of the children to Australia.
I will deal first with the judge’s ruling on N’s objections to
return. It i common ground that Art 13 requires a two-stage
approach to issues of objection. First of all, the judge has to
make findings of fact on the two questions: does the child indeed
object; and has he or she attained an age and degree of maturity
at which it is appropriate to take account of the child’s views?
Those have come to be called, for convenience, the ‘gateway’
findings. It is only if both questions are answered ‘Yes’ that the
judge may go on to consider whether, as a matter of discretion,
the return order which would otherwise be mandatory under Art 12
ought to be refused.
It is plain from the language he used that the judge did not
regard the issue of age and maturity as being concluded by age
alone. He saw the age of 9 as one at which some children may, and
others may not, have the required degree of maturity. I do not
understand him to be criticised for that view: most people would
be found, I suspect, to agree with it on the basis of everyday
experience It is equally plain that the judge made a finding that
N lacked the degree of maturity which made it appropriate to take
account of his views. Mr Munby, for the mother, has criticised
that finding on the ground that the judge, in the process of
reaching it, took into account matters which it was not
permissible for him to consider at the gateway stage. At that
preliminary point the court is bound, he submitted, to confine
itself to reaching a conclusion purely on the general evidence
available as to the child’s powers of reasoning and
decision-making — uninfluenced, that is to say, by any of the
considerations which would arise if the gateway was passed, and
the child’s views fell to be examined by the court in the exercise
of the discretion which would then arise. The judge accordingly
fell into error, he submits, when he adopted an part of his
judicial appraisal of the child’s maturity the report of the court
welfare officer regarding the extent to which N had or had not
already developed an awareness of the effect on his future
relationship with the father of his being in the one country or
the other. That, submits Mr MunBy, was a matter going to the
rightness of a particular decision, not to the child’s general
ability to reach a decision.
I am unable to accept that submission. When Art 13 speaks of an
age and maturity level at which it is appropriate to take account
of a child’s views, the inquiry which it envisages is not
restricted to a generalized appraisal of the child’s capacity to
form and express views which bear the hallmark of maturity. It is
permissible (and indeed will often be necessary) for the court to
make specific inquiry as to whether the child has reached a stage
of development at which, when asked the question ‘Do you object to
a return to your home country?’ he or she can be relied on to give
an answer which does not depend upon instinct alone, but is
influenced by the discernment which a mature child brings to the
question’s implications for his or her own best interests in the
long and the short term. It seems to me to be entirely
permissible, therefore, for a child to be questioned (even at the
preliminary gateway stage) by a suitably skilled independent
person with a view to finding out how far the child is capable of
understanding — and does actually understand — those
implications. The line of questioning adopted by the welfare
officer was in my view entirely apt for that purpose, and the
judge had every justification for relying on N’s answers as part
of the evidence taken into account when assessing his maturity.
I would therefore reject the limb of the appeal which relates to
N’s objections.
The remaining issue — acquiescence — can be summarised in this
way. It is not suggested (to state the common ground first) that
the judge was at fault in basing his conclusion on ‘the Re AS
test’ as propounded by Sir Donald Nicholls V-C (and in very
similar language by Butler-Sloss LJ in the same case). It is also
undisputed that the father, having initially threatened summary
action in his own and his solicitor’s first letters, failed for a
long period (6 or 7 months) to take any step towards securing a
peremptory order under the Convention for the children’s return,
Both sides accept that the judge was entitled to treat that (as he
clearly did) as conduct amounting prima facie to acquiescence. Nor
is it disputed (subject to issues of admissibility and relevance)
that the judge was entitled to accept as truthful the evidence’
given by the father as to the erroneous advice he received
initially in Australia. The issue between Mr Munby for the mother
and Mr Setright for the father is whether the judge was entitled
to accept the explanation afforded by that evidence as negativing
the prima facie inference of acquiescence to which the father’s
previous inaction had given rise.
Sir Donald Nicholls V-C defined the touchstone in Re AZ as a
consideration of ‘whether the parent has conducted himself in a
way which would be inconsistent with him later seeking a summary
order for the child’s return’. That consideration is to be
undertaken, he said, by looking ‘at all the circumstances’. The
crux of this appeal lies in the question whether the judge was
entitled in law to include in that panorama of circumstance the
fact that the father’s inaction was attributable to wrong
professional advice.
In support of his contention that the judge was not so entitled,
Mr Munby submitted:
(1) The question whether an act (or forbearance to act) on the
part of the aggrieved parent has amounted to acquiescence is a
question to be judged. objectively by the court solely in the
light of its inferred effect upon the mind of the removing parent.
(2) Alternatively, the question is to be judged objectively in the
light of such inferences as would be drawn by any informed third
party coming to the case from outside.
(3) The objectiveness required under either approach precludes any
inquiry into the requesting parent’s actual state of mind: it is
his actions (or inactions) and not his private thoughts or beliefs
which matter.
He founded those submissions, in the course of an able and clear
argument, upon certain passages in the judgments contained in the
authorities which I ham already mentioned as cited by the judge.
They included the following:
In Re A “Minors) (Abduction: Custody Rights) [1992] Fam 106, sub
nom Re A (Minors) (Abduction: Acquiescence) [1992] 2 FLR 14 (the
case of a father whose first response to the wrongful removal of
his children had been to tell the removing wife ‘I’m not going to
fight it’), Balcombe LJ (who although dissenting in the result was
in agreement as to the principle to be applied) said (at pp 116
and 22 respectively):
‘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, and in particular the reasons for the
inactivity on the part of th, 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.’
Stuart-Smith DJ (at pp 119 and 26 respectively) said:
‘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 an 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 part 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.’
When dealing with the facts of the case, Stuart-Smith LJ noted
that the judge had taken into account the fact that the aggrieved
father had for a time made secret preparations (concealed from the
mother) for the launch of an application under the Convention. He
said of this:
‘In my judgment the judge fell into error in
considering what the father was doing, unknown
to the mother . . .’
Lord Donaldson MR said tat pp 123 and 29 respectively):
‘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, an the case ma, be,
acquiescence. Any consent or acquiescence must,
of course, be real. Thus E 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”.’
Re AZ (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 was a
wrongful retention case. The aggrieved father, an American citizen
resident in Germany, had assented to an interim arrangement under
which the child was placed, after removal from Germany by the
mother, in the care of an aunt. Some months later (after starting
divorce proceedings in California in the meantime), he started
convention proceedings for the child’s return. Butler-Sloss LJ, in
overruling the decision of the judge that there had been no
acquiescence, said at p 687:
‘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 long-term acceptance of the existing
state of affairs.’
After criticizing the judge for having set too high a standard for
the degree of knowledge of rights that is required in acquiescence
cases, Butler-SIoss L] continued:
‘[The judge] also concentrated overmuch in a
subjective approach to the evidence of the
father, rather than an overall assessment of
the whole situation.’
There are remarks in the judgment of Sir Michaei Kerr to similar
effect at p 689:
‘First, I think [the judge] 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].’
The third judgment in that case is that of Sir Donald Nicholls V-C
containing the passage already quoted.
Reference was also made to a decision of my own at first instance,
W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211. That was a
case of wrongful retention by a mother who refused to return with
the child to Australia after a holiday in England. The father’s
inactivity for 10 months after learning of th’ mother’s decision
was held to have amounted in the circumstances to conduct
inconsistent with his later seeking a summary order, and therefore
to acquiescence. Having referred to the authorities already
mentioned and summarized their effect, I continued (at p 217):
‘When it is viewed from that perspective, I
regard the present case as a very plain
instance of a parent’s acquiescence through
inactivity. It is apparent from the recent
letter which the father himself exhibits from
his own Australia solicitors summarizing the
instructions they were given (or not given) by
him, that they were never asked directly by the
father whether-any immediate legal steps could
be taken to enforce the boy’s early return to
Australia. If the father’s evidence (already
quoted) purports to say anything to the
contrary, I reject it. Even if, which I do not
accept, the legal advice given to him after he
had first learned of the mother’s retention of
the child in England had been in any respect
inaccurate or incomplete, that would not help
him. His conduct has to be viewed objectively
from outside. For something like 10 months
rafter learning of the wife’s decision not to
return the boy to Australia, he took no step
towards having him brought back and for much of
that period his address wa unknown, even to his
own solicitor. That was conduct wholly
inconsistent with his later seeking ~ summary
order under the Convention.’
There is a common thread that runs through all those passages. It
can be stated in this way. Acquiescence is primarily to be
established by inference drawn from an objective survey of the
acts and omissions of the aggrieved parent. This does not mean,
however, that any element of subjective analysis is wholly
excluded. It is permissible, for example, to inquire into the
state of the aggrieved parent’s knowledge of his or her rights
under the Convention; and the undisputed requirement that the
issue must be considered ‘in all the circumstances’ necessarily
means that there will be occasions when the court will need to
examine private motives and other influences affecting the
aggrieved parent which are relevant to the issue of acquiescence
but are known to the aggrieved parent alone, Care must be taken by
the court, however, not to give undue emphasis to these subjective
elements: they remain an inherently less reliable guide than
inferences drawn from overt acts and omissions viewed through the
eyes of an outside observer. Provided that such care is taken, it
remains within the province of the judges to examine the
subjective forces at work on the mind of the aggrieved parent and
give them such weight as the judge considers necessary in reaching
the overall conclusion in the totality of the circumstances that
is required of the court in answering the central question: has
the aggrieved parent conducted himself in a way that is
inconsistent with his later seeking a summary return?
Against that background of authority, I turn to deal with Mr
Munby’s submissions.
His first submission (that the issue of acquiescence falls to be
tested by reference to the actions of the aggrieved parent when
viewed exclusively from the standpoint of the removing parent) has
the attraction of equating acquiescence in this area of the law
with familiar principles of equity and common law in other areas.
The wording of Art 13 makes it plain, however, that acquiescence
is to be used, in the context of the Convention, in a broad and
non-technical sense, where it is (as Lord Donaldson MR pointed
out) used as synonymous with the equally non-technical expression
‘consent’ (the difference between the two terms being purely
temporal). I would accordingly reject the first submission. The
concept of acquiescence is not to be restricted by confining it
exclusively to those cases where it can be shown to arise solely
from circumstances known to the removing parent.
I would accept as a general principle Mr Munby’s second submission
(that the question is to be judged objectively in the light of
such inferences as would be drawn by any informed third party
coming to the case from outside). But that is only the
starting-point. For the reasons already stated there are bound to
be cases in which it is proper for the court to embark, with
suitable caution, on an inquiry into subjective elements known
only to the aggrieved parent. It follows that I reject Mr Munby’s
third submission — to the effect that any inquiry into the
aggrieved parent’s actual state of mind in wholly precluded.
Singer J was in my judgment fully justified in having regard, in
the present case, to the fact that erroneous advice was given to
the aggrieved parent concerning his rights under the Convention as
a circumstance relevant to the question of whether or not he had
acquiesced in the wrongful removal. It involved an element of
subjective inquiry, but the judge approached that inquiry with
care and caution, and I do not think he can fairly be said to have
given it a disproportionate emphasis. The judge asked himself the
correct question: was the father’s delay in exercising his remedy
consistent or inconsistent with his later seeking a summary return
order? It was for him to decide, when answering that question,
what weight was to be given to the advice which the father
received. I can find no fault in the judge’s reasoning which led
him to the conclusion that faulty professional advice provided an
explanation for the father’s inaction — notwithstanding that such
inactivity represented conduct from which acquiescence might in
other circumstances have been properly inferred.
It remains to mention one further submission by Mr Munby. This was
that the judge sought to draw an invalid distinction in law
between cases of ‘active’ and ‘passive’ acquiescence. There are
certainly passages in the judgment, when the judge was dealing
with the authorities, in which he drew attention to that
distinction. There is no basis, in my judgment, however, for Mr
Munby’s suggestion that the judge had fallen into the error of
treating the test for determining whether there had been ‘passive’
acquiescence as different from that for determining whether there
had been ‘active’ acquiescence. There can be no doubt that when he
came to express his conclusions he applied the right test.
For these reasons the judge’s conclusion under the head of
acquiescence cannot be faulted. I would for my part dismiss the
appeal.
JUDGMENT-2:
HOFFMANN LJ:
This appeal concerns two of the exceptions in Art l3 of the Hague
Convention to the court’s duty under Art 12 to ‘order the return
of the child forthwith’. The first is the opposition of the child
to being returned. On this question I agree with Waite LJ and have
nothing to add. The second exception is that the applicant ‘had
consented to or subsequently acquiesced in the removal or
retention’. The question which arises in this appeal is what form
this purpose is meant by acquiescence.
The term ‘acquiescence’ is used in different languages in an
international convention. It cannot be construed according to any
technical doctrines of English law. The general idea is easy
enough to follow. It reflects a very general principle of fairness
which must exist in every system of law; that a party should not
be allowed to ‘blow hot and cold’ or in Scottish terminology,
‘approbate and reprobate’. But the cases show that this
deceptively simple concept may not be all that easy to apply in
practice.
In my judgment the reason for the difficulty is that
‘acquiescence’ in the Convention was not intended to mean
something capable of being defined bye a single set of necessary
and sufficient conditions which must be present in every case.
Common sense suggests that acquiescence may take different forms
and that something which forms an essential part of acquiescence
in one form may not be necessary for acquiescence in another form.
In my view the word denotes „ cluster of related concepts rather
than a single one.
The multifaceted nature of the general principle may be
demonstrated by considering the various rules in which it is
reflected in English domestic law. It forms the basis of estoppel,
promissory estoppel, waiver, election, [aches, acquiescence (in
its technical equitable meaning) and no doubt some other rules as
well. Each of these species of the principle has developed its own
rules. In some cases knowledge of one’s rights is required and in
others it Is not. Some require conduct unequivocally inconsistent
with adopting an alternative course and others are less strict.
Some look at the matter from the point of view of the party faced
with the choice and some from the point of view of the other
party. Some require the other party to have acted to his detriment
and some do not. The fact that English law has found it necessary
to make all these discriminations suggests that one cannot fairly
apply the general principle to the wide variety of cases which may
arise under the Hague Convention by adopting a single set of
criteria.
The convention provides a special summary remedy in cases of child
abduction. A parent of an abducted child is therefore faced with a
choice. He may invoke the Convention. Or he may prefer to litigate
the matter in the jurisdiction to which the child has been taken,
In accordance with its ordinary domestic and conflict rules. Or he
may postpone taking any form of legal action. In the meanwhile he
may try to persuade the abductor to bring the child back. He may
just think about what to do next. Finally, he may ‘ tee content to
leave the child where it is.
The cases show that acquiescence is not confined to this last
choice. It will include conduct which shows that the applicant has
elected to pursue some other remedy or course of action rather
than seek summary return under the Convention. As Butler-Sloss LJ
put it in Re AZ (A Minor) (Abduction: Acquiescence) [1993] 1 FLR
682 at p 887:
‘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.’
There is here an analogy with the English domestic rule concerning
election between remedies. As Lord Diplock explained in Kammin’s
Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850
at p 883:
‘This arises in a situation where a person is
entitled to alternative rights inconsistent
with one another. If he has knowledge of the
facts which give rise In law to these
alternative rights and acts in a manner which
is consistent only with his having chosen to
rely on one of them, the law holds him to his
choice even though he was unaware that this
would be the legal consequence of what he did.`
For the purposes of this doctrine, inconsistency is judged on a
purely objective basis and there is no requirement of knowledge
that alternative remedies were available or that the act in
question would amount to an election. Nor is it necessary that
the other party should have acted in reliance upon the election.
The fact that the parent of an abducted child has a choice of
remedies therefore makes it unsurprising that judges interpreting
the Convention should have construed the concept of acquiescence
to include something which resembles the doctrine of election in
English domestic law. This does not mean that they have simply
transposed domestic rules. But the rules of election have been
evolved in English law because they were thought a reasonable
application of th general principle about not blowing hot and cold
in the particular context of inconsistent remedies. In general
terms, if not In detail, one would therefore expect something
similar to be reflected in the similar context of the Convention.
Thus Re AZ (A Minor), to which I have already referred, concerned
the child of an American serviceman habitually resident in
Germany. The mother, who was English, brought the child to England
for a visit to her family. There in October 1991 she formed a
relationship with another man and decided to stay. The child was
looked after by her aunt.
The mother’s family got in touch with the father and asked him to
come to England to sort things out. His duties prevented him from
coming at once and so he asked the aunt to continue looking after
the child. The aunt applied in December 1991 to the Oxford County
Court for a residence order and a prohibited steps order which
would prevent the father from taking the child back to Germany.
The father, served with the application, filed an answer in which
he consented to the aunt’s proposals for the child. He gave her a
power of attorney effective for a year which authorized her to
deal with the child’s welfare and education.
At about the same time, the father commenced divorce proceedings
in California in which he asked for care and control of the child.
But he did not indicate to the aunt that he would oppose her
application for a residence order until 26 March 1992, when he
said that he wanted to take the child back to Germany. On 13 May
1992 he issued his summons under the Hague Convention.
Booth J held that the father had not acquiesced in the child’s
retention in England. She said that his intention was to leave the
child with the aunt until he could make the necessary arrangements
to have him cared for in Germany. This intention was evidenced by
the application for care and control in the Californian divorce
proceedings. Furthermore, the father did not know that he had a
right to summary return under the Hague Convention.
In reversing the judge, Butler-Sloss LJ said that acquiescence did
not require that the father should have known of the Convention.
It was sufficient that he knew that the child had been wrongfully
removed or retained. His conduct amounted to ‘a clear decision to
leave [the child] with the aunt for the time being’. This was
sufficient acquiescence to debar him from resorting to the summary
remedy. It did not have to be ‘acceptance of an unchangeable state
of affairs’ and was therefore not inconsistent with the
application for care and control in California.
Sir Michael Kerr said that the judge had erred in the emphasis she
put upon the father’s state of mind instead of ‘his conduct,
viewed objectively, and on the effect which, to his knowledge, it
conveyed to the aunt’. His outward conduct was ‘in all respects
only consistent with the boy remaining in the care of the aunt for
the time being’. She also gave too much weight to his lack of
knowledge of the Hague Convention. Sir Donald Nicholls V-C said
that the touchstone to be applied was ‘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’.
All this is very like the language of election. The primary
question is whether the conduct is objectively inconsistent with
an intention to pursue the convention remedy and little if any
weight is given to whither the applicant knew the nature of the
remedies between which he was entitled to choose or the reasons
for his conduct. On the other hand, the cases emphasize that the
inconsistency must be clear and unequivocal. Ambiguous conduct
cannot amount to this form of acquiescence.
There are, however, other forms of acquiescence which suggest
different analogies. These may be ‘standing by’, acquiescence in
its equitable meaning or possibly even [aches, These do not
require an unequivocal act but do place greater emphasis upon the
applicant’s knowledge of the remedy and the reasons for his
conduct. The courts have recognized the differences between the
various forms of acquiescence by distinguishing between ‘active’
and ‘passive, acquiescence. Active acquiescence in the unequivocal
conduct which I have compared to election while passive
acquiescence is a failure to act in circumstances in which action
was to be expected. The distinction is made most clearly in the
judgment of Stuart-Smith LJ in Re A (Minors) (Abduction: Custody
Rights) [1992] Fam 106, sub nom Re A (Minors) (Abduction:
Acquiescence) [1992] FLR 14. In that case the mother abducted the
children to England from the matrimonial home in Australia. A few
days later the father wrote her a letter in which he said:
‘I think you know that what you have done is
illegal but I’m not going to fight it. I am
going to sacrifice myself rather than them.’
In fact he was simultaneously preparing to take proceedings under
the Convention and Thorpe J held that his conduct viewed ‘in the
round’ did not amount to acquiescence. This court, by a majority,
said that the letter was an unequivocal and irrevocable decision
not to pursue the Convention remedy. For the purposes of this
kind of acquiescence, which Stuart-Smith LJ characterised as
‘active’, it was not relevant to consider the father’s motives for
writing the letter and his inconsistent conduct in Australia of
which the mother knew nothing. In cases of active acquiescence the
words or conduct of the applicant must have been ‘clear and
unequivocal’ and the other party must believe that there has been
an acceptance of the position. On the other hand, in cases of
passive acquiescence, constituted by ‘silence and inactivity in
circumstances in which the aggrieved party may be expected to
act’, the court does, as Lord Donaldson of Lymington MR said,
investigate the applicant’s conduct in the round. It considers
what the applicant knew of the choices open to him and the reasons
for his silence or inactivity.
In this case the mother relied upon two matters for saying that
the fatheads conduct amounted to active acquiescence. First, the
letter which he wrote on 23 March 1993, saying that he had been
advised that his wife had ‘broken some international convention’
and ending: ‘If I don’t hear from you very soon, verbally and
satisfactorily, then action would have to begin one way or the
other’, followed by a failure to institute proceedings until
November 1993. Secondly, on the father’s evidence, the numerous
letters which he wrote to his wife trying to persuade her to
return voluntarily with the children. Singer J held that neither
amounted to conduct unequivocally inconsistent with the pursuit of
the summary remedy under the Convention. I agree. The failure to
give immediate effect to the threat in the letter of 23 March 1993
could have had many explanations and was not inconsistent with a
decision to delay rather than abandon resort to the Convention.
One must remember that although the Convention confers a summary
remedy in the sense that the child must be returned without
investigation of the merits, it is expressly made available for a
year after the abduction. It is therefore difficult to infer from
mere delay short of that period an unequivocal decision to abandon
reliance on the Convention. Likewise, the husband’s attempt to
persuade his wife to return the children voluntarily was not
inconsistent with resort to law when the attempt failed. The
father was not blowing hot and cold: he was blowing warmly and
then blowing hotter.
The judge, in my view rightly, treated the mother’s case as one of
passive acquiescence. In those circumstances, he said that he was
entitled to take into account all the circumstances which
explained the father’s inaction. He accepted his explanation that
he had been badly advised as to the cost of bringing Convention
proceedings and did not realise either that he could approach the
Australian central authority for assistance or that he would be
entitled to legal 83 d in England. Against this background (which
was, of course, unknown to the mother) the judge said that
acquiescence could not be inferred.
Mr Munby, who appeared for the mother, attacked the distinction
between active and passive acquiescence as wrong in principle and
unworkable in practice. Acquiescence, he said, was a single
concept which could be established by different kinds of evidence.
Sometimes this would consist of acts, sometimes omissions and
usually both. But the criteria for deciding whether the evidence
established acquiescence were always the same and if’ the father’s
knowledge of the details of the Convention and his conduct unknown
to the mother were irrelevant in Re AZ (A Minor) (Abduction:
Acquiescence) [1993] FLR 682, they should be equally irrelevant
here. The judge, he said, erred in law by examining what the
evidence showed about the father’s state of mind. He should have
confined himself to the way things looked from the point of view
of the mother.
As I have already indicated, I reject the submission that
acquiescence is a single concept. I accept that the labels
‘active’ and ‘passive’ may one day have to be reconsidered in a
case in which, in the light of something which has gone before, an
omission is on the facts a plain and unequivocal choice not to
pursue the Convention remedy. It may also be that some future case
will show that two categories are not sufficient. But for the
purposes of the present case they serve well enough.
I think that where the conduct relied upon is inactivity, it would
be unjust not to take into account the reasons, whether they were
known to the other part or not. Suppose, for example, that shortly
after the abduction the applicant suffers an incapacitating
illness of which the abductor knows nothing. I do no accept that
his resulting inaction could fairly be described as acquiescence.
Equally, I do not think that a party can be said to have
acquiesced by doing nothing if he reasonably thought, on the basis
of the advice he had been given, that there was in practice
nothing which he could do. I do not think that this amounts, as Mr
Munby contended that the judge had done, to examining whether the
applicant had subjectively acquiesced. If a person knowing all the
objective facts and looking at the matter in the round would infer
from the applicant’s inactivity that he had acquiesced, it does
not matter that he had actually intended all the time to pursue
the summary remedy. But the advice which the applicant received
and his knowledge of his rights are objective facts and I think
that the judge was entitled to take them into account. It follows
that did not misdirect himself and his conclusion that there was
no acquiescence cannot in my judgment be disturbed.
I therefore agree that the appeal should be dismissed.
JUDGMENT-3:
NEILL LJ
The objects of the Convention on the Civil Aspects of
International Child Abduction 1980 are set out in Art 1 (Editors’
note: Article 1 is not embodied by the UK in the Child Abduction
and Custody Act 1985, but is nevertheless sometimes referred to by
the English courts: see, for example, Re H; Re S (Abduction:
Custody Rights) [1991] 2 AC 476 at p 494, [1991] 2 FLR 252 at p
266 per Lord Brandon) which provides:
‘The objects of the present Convention are —
(a) to secure the prompt return of children
wrongfully removed to or retains 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 major part of the Convention is set out in Sch 1 to the Child
Abduction and Custody Act 1985.
In these proceedings the mother relies on two provisions in Art 13
of the Convention in support of her argument that the court is not
bound by Art 12 to order the return of the three children to
Australia.
First, it is argued that the court should find that the eldest of
the three boys objects to being returned to Australia and that he
has attained an age and degree of maturity at which it would be
appropriate to take account of his views. If such a finding were
made, it is further argued, the court would be entitled to and
should refuse to order the return of any of the three children. On
this aspect of the case I am content to say that I agree entirely
with the judgment of Waite LJ and have nothing to add.
I do propose, however, to add some words of my own directed to the
second argument advanced on behalf of the mother. This argument is
to the effect that the court is not bound to order the return of
the children because subsequent to their removal from Australia
the father had acquiesced in their removal to England or their
retention here.
I should start by setting out the relevant part of Art 13. It is
in these terms:
‘Notwithstanding the provisions of the
preceding Article, the judicial . . . 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;
From the wording of Art 13 and from the authorities to which Waite
LJ has referred it is plain:
(1) that as the words ‘subsequently acquiesced in’ appear in an
international convention one cannot have regard to any technical
rules of English domestic law or to any special meanings which may
be given to ‘acquiescence’ when, for example, principles of equity
are applied in English courts;
(2) that it is legitimate to have regard to other official
languages of the Convention, if to do so is of assistance;
(3) that as the words ‘subsequently acquiesced in’ follow the
words ‘consented to’ acquiescence includes, though it is not
limited to, consent given after the time of removal or retention.
As Lord Donaldson MR put the matter in Re A (Minors) (Abduction:
Custody Rights) [1992] Fam 306 at p 123C, sub nom Re A (Minors)
(Abduction: Acquiescence) [1992] 2 FLR 14 at p 29E:
‘Consent, if it occurs, precedes the wrongful
taking or retention. Acquiescence, if it
occurs, follows it . . .’;
(4) that it is for the party opposing the child’s return to
establish that the other party had consented to or subsequently
acquiesced in the removal or retention.
It follows therefore that though in other contexts the word
‘acquiescence’ may suggest approval which is silent or tacit
rather than expressed, in the Convention the phrase ‘acquiesced
in’ includes both conduct which involves the taking of active
steps as well as conduct which amounts to complete inactivity. The
conduct to be examined may cover a wide spectrum. Accordingly,
provided the terms ‘active acquiescence’ and ‘passive
acquiescence’ are not allowed to become rigid categories or
substituted for the general term ‘acquiesced’ in the Convention I
see no objection to their use. Indeed they are of value as
demonstrating that acquiescence may take a number of different
forms.
Where the parent opposing the return raises the issue of consent
or acquiescence the court will scrutinize the conduct of the
applicant to see whether that conduct is consistent with the claim
for a summary order. The court will look at all the circumstances.
The conduct of the applicant must be looked at objectively.
However, with one exception to which I shall come later, the court
should admit evidence to explain conduct which otherwise might
indicate acquiescence. Thus, for example, a long period of silence
or a failure to reply to a communication from the other parent
where an answer would be expected may be capable of explanation.
The applicant might have been ill or in some other way disabled
from taking any action.
It was strongly argued on behalf of the mother that it was
necessary to look at the conduct of the applicant parent through
the eyes of someone in the position of the other parent. As I
understand the convention, however, the court is primarily
concerned, not with the question of the other parent’s perception
of the applicant’s conduct, but with the question whether the
applicant acquiesced in fact. It is to be remembered that the
jurisdiction of the requested State is based on the premise that
the original removal or retention of the child was wrongful. The
proof of consent or acquiescence does not extinguish the
jurisdiction to order the return of the child; it merely debars
the applicant from obtaining a summary order under Art 12 as of
right. It follows therefore that the court should make its own
assessment of the applicant’s conduct, and the impact of that
conduct on the wrongdoer is of relevance only to the extent that
the wrongdoer cannot establish that the applicant acquiesced if he
or she did not believe that the applicant had done so: see Re A
and Another (Minors: Abduction) [1991] 2 FLR 241 at p 249 per Fox
LJ; Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 at p
120B, sub nom Re A (Minors) (Abduction: Acquiescence) [1992] 2 FLR
14 at p 26D per Stuart-Smith LJ.
It is also clear, however, that where the applicant has made some
unambiguous communication to the other parent which, looked at
objectively, constitutes acquiescence in the removal or retention
the applicant is not allowed to withdraw that communication or to
rely on some unexpressed reservation. Thus in Re A (Minors)
(Abduction: Custody Rights) the majority of the Court of Appeal
held that once there is acquiescence then, in the words of Lord
Donaldson at p 123G, ‘the condition set out in Art 13 is
satisfied’. But the reason why the applicant is not entitled to
withdraw or add some explanation is because, looked at
objectively, the communication is unequivocal and is sufficient
and conclusive evidence of acquiescence.
I turn to the facts of the present case. I am satisfied that
looking at the judgment of Singer J as a whole he applied the
right test to the facts before him, I can see no sufficient reason
to interfere with his decision. Accordingly I too would dismiss
the appeal .
DISPOSITION:
Appeal dismissed.
SOLICITORS
Letcher & Son for the mother; Kingsley Napley for the father.