Re AZ (A Minor) (Abduction: Acquiescence)
| Jurisdiction | England & Wales |
| Judge | THE VICE-CHANCELLOR,LORD JUSTICE BUTLER-SLOSS,SIR MICHAEL KERR |
| Judgment Date | 29 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0729-4 |
| Date | 29 July 1992 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0752 |
[1992] EWCA Civ J0729-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mrs. Justice Booth)
Royal Courts of Justice
The Vice-chancellor
(Sir Donald Nicholls)
Lord Justice Butler-Sloss
and
Sir Michael Kerr
92/0752
MR. R. A. RITCHIE (instructed by Messrs Pritchard Joyce & Hinds, Beckenham, Kent) appeared on behalf of the Respondent (Plaintiff).
MR. P. ECCLES QC and MISS C. de SOUZA-TURNER (instructed by Messrs Bower & Baily, Banbury, Oxon appeared on behalf of the Appellants (Defendants).
I will ask Lord Justice Butler-Sloss to give the first judgment.
This appeal arises from the application of the Hague Convention to a child found by Booth J. on the 21st May 1992 to have been wrongly retained in England by his mother and her family. The judge ordered his return to Germany. The aunt of the child is the appellant, but a complication has arisen in that the mother, who up to now has played no part, has come forward and asked for leave to intervene in the appeal and to file a notice of appeal. We have given leave. The aunt now believes that the mother should take over the care of the child from the aunt.
Zachary is the son of an American Air Force sergeant and an English girl. His parents were married on the 4th February 1989 in Nevada, USA. His father has been stationed in Germany since January 1991. Zachary was born there on the 4th February 1991 and is 17 months old. He is an American citizen, but until he came to England in 1991 he was habitually resident in Germany. His mother, with the consent of his father, brought him to England on the 29th October 1991 to stay with her family. The father was to join them for Christmas and they were due to fly back together on the 21st January 1992. The marriage was not however a stable one; in October the mother met and formed a relationship with another American airman stationed in England. She decided not to return to Germany. She left her child with her mother who was unable, through ill-health, to manage. The mother's sister (the aunt) and her husband stepped into the breach and took over the care of Zachary. The father was on manoevres in Spain but he was contacted in November by the mother's family with whom he was on excellent terms. They urged him to come to England immediately to sort everything out but for various reasons it was not convenient for him to come then. He asked the aunt to look after Zachary until he came to England at Christmas and the judge found that he agreed willingly to the aunt's proposals. on the 19th December 1991 the aunt applied ex parte to the Oxford County Court for a Residence Order and Prohibited Steps Order (under the provisions of the Children Act 1989) and both orders were made. The judge found that the purpose of the orders was to prevent the father from taking Zachary back to Germany. The father was served with the orders on his arrival in England. He filed an answer in which he disputed some immaterial statements but otherwise indicated that there was nothing else relevant for the court to know and answered yes to the question whether he agreed with the applicant's plans for the child. At this time he took no legal advice about the position in England, although the aunt suggested that he should do so. However, he arranged to be provided with Californian divorce papers which were notarised at an RAF base and initiated divorce proceedings in California which were filed in February, in which he asked for joint custody to the mother and himself but that he should have the care and control of Zachary. Both he and the mother signed the forms, although the mother did not appreciate the implications over custody. Before returning to Germany on the 27th December, the father executed a power of attorney in favour of the aunt to deal with the health, welfare and education of Zachary which was effective for a year. He also handed to the aunt the child's social security papers and his birth certificate. There was a directions' hearing fixed for the aunt's application for the care of Zachary on the 17th January and the father telephoned the aunt's solicitor on the 13th January and asked if he should come to England to attend the hearing. According to the attendance note of the solicitor, the father said he was minded not to contest the proceedings and did not wish to file an affidavit. He was advised to attend the final hearing on the 14th May but that it was not necessary to attend the directions' hearing. He did not attend. The aunt's lawyers believed her application would not be opposed. The father came to England to visit his son on a monthly basis at the aunt's home. It was not until 26th March, after an argument, that the father communicated to the maternal family his intention to take over the care of Zachary and return with him to Germany. The parties were immediately reconciled but the aunt became concerned as to the plans of the father and on the 1st May her solicitor wrote to the father who did not reply to the letter. He issued the originating summons under the Hague Convention (Child Abduction and Custody Act 1985) on the 13th May 1992. Consequently the County Court proceedings could not continue. The father's application came before the judge on the 21st May and he sought the return of Zachary to Germany with him. The judge found that the child had been wrongfully retained in this country, either when the mother decided not to return or when the aunt took the County Court proceedings. She also found that there had been no acquiescence by the father and consequently she had no option but to order the child to return to Germany.
The purpose of the Hague Convention is to discourage child abduction and to return a child wrongfully removed or retained as quickly as possible to the country of his residence in order that the courts of that country should decide where and with whom the child should live.
Despite some argument on behalf of the aunt, in my view this appeal does not turn on wrongful retention, habitual residence, or consent, but on acquiescence and I do not propose to set out the arguments on the first three points. In my judgment, the judge was entirely justified in her conclusions under Article 13 that the child was wrongfully retained and that his habitual residence was Germany. Whether the courts of Germany are best suited to deal with a child of an American father and an English mother adventitiously resident in Germany when the child was born is a matter for the parties and the German court. On the application of the Hague Convention, Germany is the country of habitual residence of Zachary and based on the judge's findings, unless Article 13 applies, the judge is bound to order the return of the child under Article 12.
The court has however a discretion not to return the child if one of the situations set out in Article 13 is proved. In this appeal Article 13(a) is relied upon:
"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…had consented to or subsequently acquiesced in the removal or retention;"
According to Lord Donaldson of Lymington M.R. in Re A (Minors):(Abduction: Acquiescence) [1992] 2 FLR 14 at page 29:
"In context, the difference between "consent" and acquiescence is simply one of timing. Consent, if it occurs, precedes the wrongful taking or retention. Acquiescence, if it occurs, follows it."
It is clear that the present case turns on acquiescence. The judge relied on and applied a passage from the judgment of Stuart-Smith L.J. at page 26 of the same decision:
"Acquiescence means acceptance, and it may be either active or passive.
If it is active, it may be signified by express words of consent or by conduct which is inconsistent with an intention of the party to insist on his rights and consistent only with an acceptance of the states quo. If it is passive, it will result from silence and inactivity in circumstances in which the aggrieved party may reasonably be expected to act. It will depend on the circumstances in each case how long a period will elapse before the court will infer from such inactivity whether the aggrieved party had accepted or acquiesced in the removal or 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 party's act in removing or retaining the child is unlawful. And if he is aware of the factual situation giving rise to those rights, the court will no doubt readily infer that he was aware of his legal rights, either if he could reasonably be expected to have known of them or taken steps to obtain legal advice.
If the acceptance is active, it must be in clear and unequivocal words or conduct and the other party must believe that there has been an acceptance."
On the present facts the judge found that the father procrastinated and took his time, which she found very significant, that he disliked confrontation and was fond of his wife's family, that he prevaricated and was from time to time ambivalent. She was impressed by the fact that he indicated in the Californian divorce papers an intention to take over the care of his son. He had made some inquiries as to how...
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