Re O (Abduction: Consent and Acquiescence)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Court | Family Division |
Child abduction – Consent – Acquiescence – Mother removing child from Australia to United Kingdom – Proposing to stay in United Kindgom permanently – Whether father consented to removal or subsequently acquiesced in retention – Child Abduction and Custody Act 1985, Sch 1, arts 3, 13(a).
In 1989 the mother, who was British, met and married the father, an Australian citizen, in Australia. They had one child, a boy, who was born in 1993. In August 1996 the mother told the father not only that the marriage was over but also that she wanted to return to the United Kingdom with the child permanently. There followed heated discussions during the course of which the father alleged that the mother had threatened to kill herself and the child unless he signed a document agreeing to her taking the child to the United Kingdom. Pursuant to advice given to her at a citizen’s advice bureau, the mother prepared an agreement which included several statements that the child would remain with the mother in the United Kingdom and that the father gave his full consent to the mother taking the child out of Australia. That document was signed by both parties and witnessed at the citizen’s advice bureau. The following day, without telling the father, the mother left for England with the child. In subsequent telephone conversations the father on occasions asked her to return and on others said he would come to England. In October 1996 the mother filed a petition for divorce and a statement of arrangements for the child and sought a residence order. In response the father’s lawyers sent, inter alia, a document headed ‘Family Court of Western Australia. Family Act 1975, Applications for Consent Orders, Form 12A’. Under section F, ‘Arrangements for children’, in answer to the question, ‘What are the proposed arrangements for each child?’ it was stated that the child resided with the mother with the support of her parents, that the mother supported the child on social security in the United Kingdom, and that the maintenance payable by the father would be in the form of his paying all the child travel costs for two trips a year for contact. In December 1996 the father applied 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 summary return of the child pursuant to arts 12 and 13, contending, inter alia, that as he had only consented to the child’s removal as a result of the mother’s threats to harm the child it was not a true consent, and once there was a
prima facie case of lack of consent, then consent fell to be decided under art 13(a) of the convention. The mother submitted that the father had consented to the child’s removal, or had subsequently acquiesced, and since the removal had not been wrongful, the terms of art 3 had not been breached and so arts 12 and 13 had no application.
Held –– (1) Whether a parent’s consent to the removal of a child from the country in which the child was habitually resident fell to be decided under art 3 or art 13(a) of the Hague Convention would depend on the facts of each case. If the non-removing parent asserted or effectively had to concede that on the face of it he gave his consent but asserted that it was vitiated by deceit or threats or some other vitiating factor which he had to raise in order to establish that his consent was no true consent, then the matter fell to be dealt with under art 3. But if the very fact of consent was in issue then the matter came within art 13(a) and the burden fell on the person who asserted consent to prove it. In the present case, the father had prima facie given his consent to the child being removed by the mother when he signed the agreement at the citizen’s advice bureau. On the facts, his consent was a valid consent and his rights of custody had not been breached. Accordingly the removal was not wrongful under art 3.
(2) Once parental acquiescence in the removal of the child had been established, the court retained a discretion to grant or refuse an order for immediate return under the convention. In this case the only inference to be drawn from the father’s behaviour was that he had acquiesced, after the removal, in the child living permanently in England and in exercising the court’s discretion relevant factors included the following: there was no significant difference between the English and Australian jurisdictions to determine the child’s future in the substantive proceedings; the likely outcome of the proceedings, whether here or in Australia, was that the mother would be the primary carer of the child in England; the consequences of the consent and/or acquiescence was that the child had become settled in England; an immediate return of the child to Australia was likely to cause him upset and distress; and in view of the emphatic nature of the consent and acquiescence of the father, the purpose and underlying philosophy of the convention would not be at risk of frustration if a return order were to be refused. Accordingly, the discretion would be exercised by refusing to order the child’s return to Australia and dismissing the father’s application.
Cases referred to in judgmentA (minors) (abduction: custody rights), Re[1992] 2 FCR 97, [1992] Fam 106, [1992] 1 All ER 929, [1992] 2 WLR 536, CA.
A (minors) (abduction: custody rights) (No 2), Re[1993] 1 FCR 293, [1993] Fam 1, [1993] 1 All ER 272, [1992] 3 WLR 538, CA.
A (Z) (child abduction), Re[1993] 1 FCR 733, Fam D and CA.
B (a minor) (abduction), Re[1995] 2 FCR 505, CA.
C (a minor) (abduction), Re [1989] FCR 197; sub nom C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER 465, [1989] 1 WLR 654, CA.
C (minors) (abduction: consent), Re[1996] 3 FCR 222.
H (minors) (abduction: acquiescence), Re[1996] 3 FCR 425, CA; rvsd[1997] 2 FCR 257, HL.
S (minors) (abduction: acquiescence), Re[1994] 2 FCR 945, CA.
W v W (child abduction) [1993] 2 FCR 644.
ApplicationThe father applied to the High Court under Sch 1 to the Child Abduction and Custody Act 1985 for an order returning his three year old son, B, to Australia, the country of the child’s habitual residence, following the child’s removal to England by the mother who opposed the application on the ground that the father had consented to the child’s removal. The hearing took place and judgment was given in chambers. The facts are set out in the judgment.
Ian Karsten QC and Michael Hosford-Tanner (instructed by Colin Watson & Co) for the mother.
Mark Everall QC and Debbie Taylor (instructed by David Truex & Co) for the father.
14 February 1997. The following judgment was delivered.
Cur adv vult
BENNETT J.The father applies to this court under the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) as set out in Sch 1 to the Child Abduction and Custody Act 1985 for the summary return of his son, B, born on 15 December 1993, who is therefore three years old.
On 28 August 1996 the mother removed B from Western Australia, where he was habitually resident, to England, and the mother and B have been in this country ever since. The father alleges the removal was wrongful, in that it was in breach of his rights of custody, because the consent he gave in writing was not true consent. The mother says that (a) the father truly consented to her removing B prior to 28 August, and/or (b) that after his removal, the father acquiesced in the removal of B.
The father, who is 35 years old, is an Australian citizen and works on oil and gas rigs at sea. The mother, who is 31 years old, is a British citizen. In December 1988 the mother, then in Australia, met the father. They fell in love. They married on 18 March 1989. The mother became pregnant, but miscarried. In December 1993 B was born. There were considerable stresses in the marriage. The father was banned for life from driving motorcars, though under Australian law he has an ‘extraordinary licence’ which enables him to drive to and from work. The mother accuses him of being a
substantial user of drugs. By June 1996 the mother says that the marriage was effectively over and the father was aware of that.
On 9 June 1996, with the consent of the father, the mother and B flew to England because the mother’s grandfather had died and she wanted to attend the funeral. The mother’s father purchased one-way tickets for the mother and B from Australia to England. The mother and B stayed with her parents at their home in Cheshire.
On 20 August 1996 the mother and B arrived back in Western Australia and were met by the father. The mother and B travelled on return tickets (ie England-Australia-England) purchased by the mother on the father and the mother’s credit card. The mother told me in evidence that she returned to Australia for a number of reasons. She returned home because she wanted to tell the father face to face that, not only was the marriage over, but that she wanted to return to England with B permanently, for which she wanted the father’s approval. She also went back to sort out her affairs and pack up the belongings of her and B. She expected all that to take some time, possibly several months. She denied she came back to get the father’s written consent.
When the father met the mother and B at the airport on 20 August 1996, he detected something was amiss. She was not affectionate to him. They went back to the matrimonial home near Freemantle in Perth. Later that day, the father says that the mother told him that she did not love him and wanted to go back to England with B. The father said he could not believe what he was hearing. The father says he was so upset that he telephoned his brother, P, to come over. According to the father, there was a heated argument in the presence of P. The father told her she could leave Australia if she wished, but that B could not. Then the mother is said to have become distraught and on...
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