Re CT (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Year | 1992 |
| Court | Family Division |
SIR STEPHEN BROWN, P
Child abduction – acquiescence – child wrongfully removed from Australia by mother – father commencing proceedings under Hague Convention for return of child – subsequently telling mother to ignore proceedings and instructing his solicitor not to proceed – two months later father reactivating Convention proceedings – whether father had acquiesced in removal.
The parties were married in Australia in 1988. At that time the mother had a child of whom her husband was not the father. A child of the marriage was born in 1989. The marriage became unhappy and in June 1991 the parents separated. On 4 or 5 July 1991 the mother left Australia with the two children and came to England. That was a wrongful removal of the child of the marriage under Article 3 of the Convention on the Civil Aspects of International Child Abduction.
In July 1991 the father instituted an application under the Convention for the return of the child, but he did not pursue the matter. He came to England seeking a reconciliation with the mother. That was unsuccessful and he returned to Australia. In a letter dated 9 September 1991 the father stated that he promised the mother he would not get the child back. On 12 September 1991 the solicitors acting for the father in Australia wrote to the mother stating that his specific instructions were not to proceed with the application. However, in November 1991 the father reactivated the application. The mother swore an affidavit that when the father had visited her in England he had said she was not to worry about a letter she might get under the Convention provisions as he did not want to get the child back, but it was a device for getting her to return to Australia.
Held – By Article 12 of the Convention, where a child had been wrongfully removed in the terms of Article 3 and proceedings for the return of the child were commenced within a period of less than a year from the date of the wrongful removal, the court was required to order the return of the child forthwith. This mandatory and peremptory procedure was subject to Article 13 which, inter alia, provided that the court was not bound to order the return of the child if the parent opposing the return established that the other parent had acquiesced in the removal. In this case, there was evidence that the father had told the mother that the Convention proceedings were a device to get her to return to Australia and that he did not want the child back. His letter of 9 September was to the same effect, and his solicitors' letter of 12 September stated that they had been instructed not to proceed further with the application. The mother had established on the balance of probabilities that the father did subsequently acquiesce in the removal of the child to England. The court therefore had a discretion not to order the return of the child to Australia and, having regard to the circumstances, the court would not order the child's return.
Janet Plange for the father.
Andrew Tidbury for the mother.
SIR STEPHEN BROWN, P.The court has before it an application by an Australian father of a little girl, C, born on 27 November 1989, made under the Child Abduction and Custody Act 1985 more particularly pursuant to the provisions of Sch 1 to the Act which incorporates in the statute the Convention on the Civil Aspects of International Child Abduction known generally as the Hague Convention.
The defendant to the application is the mother of the child, she is the wife of the plaintiff...
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