Re A (Minors) (Abduction: Acquiescence)

JurisdictionEngland & Wales
Judgment Date12 February 1992
Neutral Citation[1990] EWCA Civ J1221-7
Judgment citation (vLex)[1992] EWCA Civ J0212-7
CourtCourt of Appeal (Civil Division)
Docket Number90/1157,92/0103
Date12 February 1992
Re "A" Minors

[1990] EWCA Civ J1221-7


Lord Justice Fox

Lord Justice Balcombe

Lord Justice Stocker







Royal Courts of Justice

MR. HUGH BENNETT Q.C. and MR. MICHAEL PHILLIPS (instructed by Messrs. G. Houghton & Son) appeared for the Appellant (Mother).

MISS KAY JONES (instructed by Messrs. Vizards) appeared for the Respondent (Father).


This is an appeal by the mother from an order of Mrs. Justice Booth made under the Child Abduction and Custody Act 1985 for the return of two children of the marriage to the father. The Act gives the force of law in the United Kingdom to the Convention on the Civil Aspects of International Child Abduction, which was signed in the year 1980. The articles of the Convention with which we are primarily concerned are Articles 3, 12 and 13. They can be found in Schedule I to the Act of 1985 as follows:

"Article 3

The removal or the retention of a child is to be considered wrongful where—

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested state has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13

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 was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."


The parties were married in 1986 in Tucson, Arizona. The father is American and the mother is English. The two children of the marriage are aged four and two or thereabouts. At the time of the marriage the father was a sergeant in the United States Air Force. The parties established their home in Tucson, Arizona and that remained their matrimonial home for some time.


The marriage got into difficulties in 1989. At the end of June 1989 the home in Tucson was sold. With the consent of the father the mother came to England with the children in July 1989. It was intended that the mother should take the children to England for three months. She would then return to Tucson by herself and drive by car to Florida. She would thus have taken the children initially to England, and it was intended that ultimately the parties should find a home in Florida with the children and, when the home had been found, it was intended that the maternal grandmother would bring them out from England. Thus it was hoped that a home would be established in Florida, in Orlando.


Early in August 1989 the father telephoned the mother and told her that the Air Force was proposing to send him to Korea for a one year posting. The father was keen to accept the posting, as the judge found, because, if he did so, although it would mean going to Korea for a year, he thought it was likely that he would then be able to obtain a follow up posting of greater length to the United Kingdom. Accordingly, the proposal for the grandmother and the children to fly out to the United States was cancelled, as was the plan for the mother to return to the United States with a view to finding and setting up the Florida home.


The father's evidence was that the Korea posting would not take effect until May 1990. He wanted the mother and children to return to Tucson where they could obtain temporary accommodation and live there for whatever period was necessary and until it was clear whether there was likely to be a follow up posting to the United Kingdom, which would not be likely to be known until after he had gone to the Korea posting, if indeed he was posted there.


The mother's recollection was that the posting would be, if it took place, a good deal earlier than May, probably in September 1989, and that he would know about the follow up posting after he got to Korea. She says that the plan was that she should remain in England in the hope that after Korea the father would come here and the family could all live together in England which, if he was going to Korea, involved the least disturbance to the family.


In general, I should say, as regards the evidence of the parties, the judge found that she preferred the evidence of the mother where there was a conflict between her and the father.


On 29th August 1989 the father telephoned the mother and told her that he had had a motor accident and was facing a charge for drunken driving, and he asked her to send him money for the purpose, in particular, of the legal proceedings with which he was faced. In the course of that telephone conversation there was a quarrel and the mother seems to have thought that the request for money and the circumstances which gave rise to it were the last straw in a marriage which was already to some extent proving difficult, because she certainly was not happy in the United States. She decided that the marriage was over and she would not go back to the United States. The father, on the other hand, wanted the marriage to continue and he asked her to come back and talk things over. She refused.


Until the end of August the children were with the mother in England and with the consent of the father. The judge found that the father was agreeable to the children staying here in the first place until the end of August, or perhaps until the family could be together again.


When the mother decided that the marriage was at an end and that she would not return with the children to the United States the judge found that there was a fundamental change in the situation, and it was a change with which the father was not in agreement. He had been in agreement with the children coming here and staying for three months, but the indication by the mother that she regarded the marriage as being effectively at an end and that she would not return with the children to the United States changed the position.


It was common ground that, under the law of Arizona, where the children were habitually resident within the meaning of the provisions of the Convention, the mother and father had joint custody rights. By her decision that the marriage was at an end and her refusal to return with the children to the United States the judge found that the mother breached the father's rights within the meaning of Article 3 of the Convention, which by the Act of 1985 is given the force of law in England. There was, therefore, a wrongful retention of the children in the United Kingdom by the mother for the purposes of the Convention and that occurred in August 1989. As I will mention later, the father appears effectively to have agreed to an extension because the mother asked to stay in England over her sister's birthday, which was about the end of October, and that that consent continued effectively until the end of October.


On 15th November 1989 the father petitioned in Arizona seeking divorce and an order for custody of the children. When the papers were served upon the mother she entered an appearance but did nothing further about the proceedings. She told the father in a telephone conversation after the service of the proceedings that she did not agree to him having custody of the children, and he said that he would not return and take away the children but it was necessary that his rights should be, as he said, written down.



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