Re H (Child Abduction: Child of Sixteen)
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Court | Family Division |
Child abduction – Mother wrongfully removing children from Australia – Father applying for their return when eldest child 15 years old – Whether Hague Convention applied after child’s sixteenth birthday – Whether children settled in new jurisdiction and should not be returned – Child Abduction and Custody Act 1985, Sch 1, arts 4 and 12.
The mother and father married in Australia and had three children, K, A and R. Shortly after R’s birth the parents separated, and they subsequently agreed that A would live with the father and that K and R would stay with the mother. In April 1998 the mother wrongfully removed K and R from Australia and came to England. The father first knew of the children’s whereabouts in December 1998 when K sent him their address, but they then moved and their new address was not supplied to him until September 1999. In the meantime, the father sought legal advice, but he was given erroneous advice. The father also wrote to his Member of Parliament, who replied in September 1999 supplying an information pack about contacting the Central Authority for assistance 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. On 16 December 1999 the father issued an originating summons under the 1985 Act for the return of the children to Australia. At the hearing in February 2000 the issue arose as to whether K, who was 15 years old when the father made his application but was now 16 years old, came within the ambit of the 1985 Act having regard to art 4 of the Convention, which states that the ‘Convention shall cease to apply when the child attains the age of 16 years’. The mother accepted that she had wrongfully removed the children but she relied on art 12 of the Convention to argue that the children were now settled in England, and she also raised an art 13 defence, contending that the father had acquiesced.
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a Article 4 of the Hague Convention, so far as material, is set out at p 407c–407d, post
b Article 12 of the Hague Convention, so far as material, is set out at p 408e–408g, post
c Article 13 of the Hague Convention, so far as material, is set out at p 410h–411b, post
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Held – (1) Article 4 of the Convention had to be construed at face value and did not apply when the child concerned had reached the cut-off age of 16. Accordingly it did not apply to K as she had reached the defining age, and her position had to be considered under the inherent jurisdiction.
(2) In determining whether the child was ‘now settled in its new environment’ for the purposes of art 12 of the Convention, it was necessary to consider the reason for any delay in the commencement of proceedings to ensure that the
abducting parent could not rely on evading the wronged parent to argue that the child had settled in the new jurisdiction and should not be returned to the original jurisdiction. In the instant case, the mother had taken steps to ensure that the father did not know of the children’s whereabouts until December 1998, and he had brought proceedings within 12 months of that date. It followed that the mother could not, in the circumstances, rely upon the settlement of the children in this jurisdiction.
(3) Where the abducting parent alleged that the wronged parent had acquiesced in the removal of a child, the question that had to be addressed was whether the wronged parent in fact consented to the continued presence of the child in the jurisdiction to which he had been abducted, and there were two elements: actual, subjective acquiescence and acquiescence deemed from behaviour. The mother in the instant case had done everything in her power to try and prevent effective communication between herself and the father and on the totality of the evidence she had failed to discharge the burden of showing that he had acquiesced in the removal and retention of the children. It followed that the defences did not apply, and the application for the return of R under the 1985 Act was established.
Cases referred to in judgmentH (minors) (abduction: acquiescence), Re[1997] 2 FCR 257, [1998] AC 72, [1997] 2 All ER 225, [1997] 2 WLR 563, [1997] 1 FLR 872, HL.
L (abduction: pending criminal proceedings), Re[1999] 2 FCR 604, [1999] 1 FLR 433.
N (minors) (abduction), Re [1991] FCR 765, [1991] 1 FLR 413.
P v P (abduction: consent or acquiescence) [1998] 3 FCR 550; sub nom P v P (abduction: acquiescence) [1998] 2 FLR 835, CA.
ApplicationThe 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 return of his two children after the mother wrongfully removed them from Australia and came to England. The case was heard and judgment was given in chambers. The case is reported with the permission of Bracewell J. The facts are set out in the judgment.
Michael Nicolls (instructed by Heald Nickinson) for the father.
Roshi Amiraftabi (instructed by Charles Platel & Partners) for the mother.
BRACEWELL J.This is an application under the Child Abduction and Custody Act...
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Re C (Child Abduction: Settlement)
...Re[2000] 1 FCR 225, [2000] 2 All ER 1, [2000] 2 AC 291, [2000] 2 WLR 337, [2000] 1 FLR 374, HL. H (abduction: child of sixteen), Re[2000] 3 FCR 404, [2000] 2 FLR L (abduction: pending criminal proceedings), Re[1999] 2 FCR 604, [1999] 1 FLR 433. N (minors) (abduction), Re [1991] FCR 765, [19......