P v P (Abduction: Acquiescence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE CHADWICK,LORD JUSTICE HIRST |
| Judgment Date | 06 March 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0306-8 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 1998 |
| Docket Number | 97/1683/ CMS2 |
[1998] EWCA Civ J0306-8
IN THE SUPREME COURT OF JUDICATURE FAFMF
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(MRS JUSTICE HALE)
Royal Courts of Justice
Strand
London WC2
Lord Justice Hirst
Lord Justice Chadwick
Lord Justice Ward
97/1683/ CMS2
MR. A. LEVY Q.C. (instructed by Messrs Stephen Fidler & Co., Clerkenwell) appeared on behalf of the Appellant/Defendant.
MR. L. SWIFT Q.C. and MR. J. ROSENBLATT (instructed by Messrs Guy Clapham & Co., London, W1) appeared on behalf of the Respondent/Plaintiff.
The child who is the subject of this appeal will be 4 years old in a few days time. His mother is English. His father is a Cypriot. The father has rights of custody because he and the mother married in Cyprus in 1993. Cyprus was the place where they lived and brought up their son. Cyprus is the country where this child is habitually resident.
At 10.30 pm on Saturday, 5th September 1997, the father went to work and returned home at 8.30 the following morning. His wife and his son were not there. She had left a note reading: "Woke up early, gone to Larnaca." He thought that she had taken herself and the boy to the beach. In fact, she had flown to England. She now wishes to remain here with her son. The father has sought the return of the child under the Hague Convention on International Child Abduction, in answer to which the mother has raised the three Article 13 defences; that is to say, asserting, the burden of proof being upon her in this instance, that the father had consented to or subsequently acquiesced in the removal or detention of the child or, under Article 13(b), that there is a grave risk that the child's return would expose him to physical or psychological harm or otherwise place the child in an intolerable position.
On 24th November 1997 Hale J ordered that the child should be returned to Cyprus forthwith, though she exacted from the father a fairly standard undertaking as to his making provision for suitable accommodation for the mother, and giving certain undertakings as to his good behaviour. She rejected each of those three defences. The mother now appeals, though not in respect of the Article 13(b) defence, and not very forcefully against the finding that the father had not consented.
I deal with the two live issues. Firstly, consent. The parties agree that the onus is on the mother to establish this, that it should be shown in a manner similar to that which is required now for acquiescence in the light of the House of Lords decision in Re H (Abduction: Acquiescence) [1997] 2 WLR 563. The task of the court is to find as a fact whether the father subjectively intended to and did give unconditional consent to the removal of the child.
The judge reviewed the relevant material. She analysed the respective allegations and the respective denials by the father that, in this rapidly deteriorating marriage, there had been occasions when, on the mother's case, the father had said that she could return to live in England with the child, so long as he could see him when he came to England. Those allegations were denied by him. Thus she turned, and it seems to me correctly turned, to the heart of this issue, which requires the court to define what the parties intended from their contemporaneous words and actions. She concluded that (page 7 of her judgment):
"I find it impossible to believe that if there had been such consent the mother would have left in the circumstances and in the way that she did, deceiving the father as to where she and (the child) had gone, at least in the short term. She may well have hoped that he would take no action in the circumstances, but I do not accept that he had consented."
That seems to me to be absolutely correct. The manner in which the mother left her note and took her departure has all the hallmarks of a clandestine departure, knowing full well that it was contrary to the wish of her husband, the father of the child. She expected the response which she in fact received. It was a furious phone call, degenerating sadly also into threats against her in retribution for her conduct in removing the child. The very fact that she began Children Act proceedings, without a hint of this being a consensual arrangement, adds only to the inevitability of the conclusion that this was not a consensual removal. This part of the appeal is quite hopeless.
I turn therefore to the second aspect of acquiescence. This is, as the judge recognized, a more difficult question. There are, it seems from the speech of Lord Browne-Wilkinson in Re H, two separate inquiries which must be undertaken. The first is to inquire whether, as a matter of fact, the father had acquiesced. The second is to inquire whether the case can be brought within the exception which he there set out.
Dealing firstly with whether or not he in fact acquiesced, the requirements, as Lord Browne-Wilkinson summarised them at page 575G onwards, are these:
"(1) For the purposes of Article 13 of the Convention, the question whether the wronged parent has 'acquiesced' in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minor) Abduction Acquiescence [1994] 1 FLR 819,828: 'The court is primarily concerned not with the question of the other parent's perception of the applicant's conduct, but with the question of whether the applicant acquiesced in fact.'
(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.
(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertion in evidence of his intention. But that is a question of weight to be attached to the evidence and is not a question of law."
Then there is the second element, the exception, which Lord Browne-Wilkinson summarised as follows:
"(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."
The judge did not draw a sharp distinction between actual acquiescence and the exception. We should not blame her, because she recorded the case put for the mother as being whether or not the events that I must recite brought it within the exception. Nevertheless, she came to a conclusion that there was, as a matter of fact, nothing sufficient to indicate the subjective state of mind that the father was wholly content for the child to remain here.
What then are the relevant facts? As I have indicated, the father's initial reaction was of intense fury, as the mother had expected. There appears thereafter to have been an exchange of telephone calls between him and the maternal grandfather. The way in which they seem to have come about are set out in the grandfather's evidence; that is to say, that the family had immediately instructed solicitors on their behalf, and those solicitors had written, in a letter sent by facsimile transmission, on a date which is not clear from my copy but must be on or before 8th September, in which they indicated they were acting for the mother; enclosed copies of an application she had made in the Divorce Registry in London for a residence order in respect of the child; adverted to an apparent indication by the father that he intended to visit England the following day; asked him to get in touch with solicitors; and informed him that they were...
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