P v P (Abduction: Consent or Acquiescence)
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Date | 1998 |
| Year | 1998 |
| Court | Family Division |
Child abduction – Consent and acquiescence – Mother wrongfully removing child from Cyprus where child habitually resident – Father applying for summary return – Parents having previously discussed possibility of mother and child moving to England but not reaching agreement – Whether father consented to removal – After removal parents negotiating as to custody and access – Whether negotiations amounted to acquiescence – Child Abduction and Custody Act 1985, Sch 1, art 13.
The parents married in Cyprus and made their home there. They had one child, a boy, who was born in 1994. In September 1997 the mother removed the child from Cyprus and brought him to England without the knowledge of the father who, in October 1997, began proceedings under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985, for the return of the child. It was accepted that the child was habitually resident in Cyprus at the time of his removal and that the father was exercising his rights of custody at that time. The mother opposed the father’s application alleging that the father had consented to the removal of the child in that during the summer of 1997 he had indicated that she and the child could go and live in England if she wished but the father denied that. The mother further alleged that the father subsequently acquiesced in her remaining in England during the course of negotiations as to custody and access after her arrival even though they were inconclusive. In the Family Division, the judge held that under art 13 of the Hague Convention consent to the removal of a child had to be real, positive and unequivocal though it was not necessary for it to be evidenced in writing nor was it necessary for there to be an express statement of consent; and that, even accepting the mother’s evidence, it could not be said that the father had given a clear and unequivocal consent. Further, the judge held that, on the facts, the father had not acquiesced in the removal or retention of the child. The mother appealed to the Court of Appeal.
Held – (1) When considering whether a parent had consented to the removal of a child under art 13 of the Hague Convention the task of the court was to find as a fact whether the parent subjectively intended to and did give unconditional
consent to the removal of the child. In the present case the judge had reviewed the relevant material and her finding that the father had not consented to the removal of the child was absolutely correct.
(2) When considering whether a parent had acquiesced in the removal or retention of a child for the purposes of art 13 the court must undertake two separate inquiries. The first was to inquire whether the wronged parent had in fact acquiesced and that was a question of fact for the trial judge. In the present case the facts before the court were such that acquiescence had not been established. The second inquiry the court should undertake was whether, although the wronged parent did not in fact acquiesce, the case could be brought within the exception that where the words or actions of the wronged parent clearly and unequivocally showed and had led the other parent to believe that the wronged parent was not asserting or going to assert his right to the summary return of the child and were inconsistent with such return, justice required that the wronged parent be held to have acquiesced. Such clear and unequivocal conduct was not normally to be found in passing remarks or letters written by a parent who had recently suffered the trauma of the removal of his children; still less was it to be found in a request for access showing the wronged parent’s desire to preserve contact with the child. It was only if there were a concluded agreement allowing the abducting parent to remain in the country to which he or she had gone that it could be said that there was clear and unequivocal conduct such as to fall within the exception. On the facts the judge had found that the parents were attempting to resolve the situation by negotiation, that no final agreement had been reached, and that there was not such clear conduct as would have indicated to the mother that the father was forsaking his right to seek the return of the child to Cyprus. That finding was justified on the facts and the appeal would be dismissed.
Per curiam. Parents should not be deterred from seeking to make sensible arrangements for fear that the mere fact that they are able to contemplate that the child should remain where he has been taken will count against them in subsequent proceedings. Such negotiations are to be encouraged. They should not necessarily fall within the exception or necessarily lead to the conclusion that as a matter of fact there was a subjective state of mind that was wholly content for the child to remain where he had been taken.
FAMILY DIVISION
HALE J
24 NOVEMBER 1997
Cases referred to in judgmentC (minors) (abduction: consent), Re[1996] 3 FCR 222.
H (minors) (abduction: acquiescence), Re[1997] 2 FCR 257, [1997] 2 All ER 225, [1997] 2 WLR 563, HL.
K (abduction: consent), Re[1998] 1 FCR 311.
W (a minor) (abduction), Re[1996] 1 FCR 46.
Originating summonsBy and originating summons dated 14 October 1997 the father applied to the High Court for an order under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985, returning his child to Cyprus, from where the child had been wrongfully removed by the mother. The hearing took place and the judgment was given in chambers. The case is reported with the permission of Hale J. The facts are set out in the judgment.
Jeremy Rosenblatt (instructed by McMillen Hamilton McCarthy) for the father.
Robin Barda (instructed by Guy Clapham & Co) for the mother.
HALE J.These are proceedings under the Child Abduction and Custody Act 1985 and the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention) in respect of a little boy, who was born on 11 March 1994 and so is just over three and a half years old.
The plaintiff is his father, who is a Greek Cypriot. The defendant is his mother who is British. The parties were, however, married in Cyprus in February 1993 and their family home has been in Cyprus throughout their marriage until the summer of this year. The mother had made various trips to this country with the child and the father had agreed to these. The last of those trips was in August 1997.
These proceedings come about because on 5–6 September 1997 the mother and the child left the family home in Nicosia and flew to the United Kingdom to the home of the maternal grandparents. The mother left a note for the father who, as I understand it, works shifts as an engineer, reading ‘Woke up early, gone to Larnaca’. It is not suggested that she meant ‘gone to the airport to take a plane to the UK’. It is common ground that that was intended to mean that she had gone to the seaside. In fact when she got to this country she rang the father and spoke to him. At that stage he issued a threat of a very unpleasant nature to her, to the effect that he would be in prison but she would be in her grave.
The mother on 8 September immediately sought a prohibited steps order against the father in the Principal Registry of the Family Division. She obtained one and later she obtained an interim residence order. Thereafter the father began these proceedings.
The father obtained on 30 September an order in the Nicosia Family Court declaring that the transfer from Cyprus to the United Kingdom was illegal and/or irregular and ordering the mother to return the child to Cyprus within the jurisdiction of the family court. His originating summons in these proceedings was issued on 14 October.
The mother of course concedes that the child was habitually resident in Cyprus at the time when he was removed to this country. She also concedes that the father has rights of custody which he was exercising at that time. She alleges that the father had consented to the child coming to live in this country with his mother before they left. She further asserts that he has subsequently acquiesced in their
remaining here. She finally alleges that if ordered to return, pursuant to the Hague Convention, the child would be at grave risk of psychological harm or otherwise placed in an intolerable situation. In other words, she is raising the defences in arts 13(a) and 13(b) of the Hague Convention.
Her case on consent and acquiescence, although those are two distinct defences, in effect hangs together. She says that on several occasions during the summer their marital situation was discussed and the father indicated that she could return to live in England with the child. She says that this happened in May or June 1997 and the idea was that they would go to Larnaca for the weekend and that his parents would look after the child. They had a bad argument on the Friday and the father said that she could return to live in England with the child as long as he could see the child when he came to England, or...
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