Re S (Abduction: Acquiescence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRITT,LORD JUSTICE WARD |
| Judgment Date | 26 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1126-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 1997 |
| Docket Number | FAFMF 97/1552/F |
[1997] EWCA Civ J1126-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR JUSTICE SUMNER
Royal Courts of Justice
Strand
London WC2
Lady Justice Butler-sloss
Lord Justice Morritt
Lord Justice Ward
FAFMF 97/1552/F
ANDREW MCFARLANE (Instructed by Margaret Bennett, London, WC1A 2LX) appeared on behalf of the Appellant
MISS J PARKER QC & (on 26/11/97 —MR HENRY SETRIGHT) (Instructed by Mishcon de Reya, London, WC1B 5HS) appeared on behalf of the Respondent
LORD JUSTICE BUTLER-SLOSS: The first point I want to make before giving judgment is that this is a case where there will be an identification direction and it is important that nothing should be said about this child or about either of the parents, as to where they live or any element in respect of the child that could lead to the identification of the child by anybody. Secondly, the decision was given last night since there was an urgency over the confirmation or otherwise of flight arrangements for tomorrow and it was necessary that those arrangements had to be finalised one way or another yesterday evening. Consequently we took the unusual course of giving our decision without giving our reasons and we now give our reasons today.
This is an appeal by a mother of little boy called M., born on 30 September 1995, and he is therefore now 2, from the order of Sumner J made on 10 November 1997. The father of M. sought an order under the Child Abduction and Custody Act 1985 that the mother do return M. to New South Wales in accordance with the summary procedure under the Hague Convention. The mother raised the defences of consent and acquiescence under Article 13. The judge found against her on both issues and ordered the return of M. to New South Wales by Thursday of this week subject to certain undertakings. The mother appeals to this Court against the refusal of the judge to find acquiescence by the father in her retention of M. and against the order to return M. She no longer alleges consent.
The parents are English in origin. The father is 30 and a carpenter. He went to Australia with his parents in 1987. He returned to England where he met the mother, who is 27. He returned to Australia and assisted the mother to emigrate and they married in Australia in August 1989. The marriage ran into difficulties about a year after M. was born, that is to say in late 1996. The father left home briefly and on his return the mother told him the marriage was over and that she wanted to return to England. On 9 December 1996 the mother brought M. to England and went to live with her parents in Wales where they have since remained. Her case was that the father agreed to her leaving permanently with M. or at least he acquiesced in her remaining in England and took no steps for over 8 months to get M. back. The father's case was that he agreed to the mother going to England with M. for a holiday and to meet her family. He did not agree to her leaving permanently and he expected her to return until she telephoned him in mid-January to tell him she was not going back. On 25 September 1997 the father signed the Hague Convention application.
The evidence of the mother and father was, as is customary, decided by the judge on the affidavits and other documents with no oral evidence. The evidence on some issues was disputed, notably whether the father had ever asked for the return of M., but there were nonetheless many matters which were not contentious. Having considered the evidence for and against consent, which I have not set out since that defence is no longer pursued, the judge was satisfied that the father had not consented to the child remaining in England beyond the period of a holiday.
I turn therefore to acquiescence. The matters now relied upon by the mother in support of her case of acquiescence were listed by the judge at pages 9 and 10 of his judgment. He went on to make certain findings of fact adverse to the mother which are criticised by Mr McFarlane who appeared for her both before the judge and before this Court. In a Hague Convention case, decided on written evidence with conflicting accounts of events, if the court cannot resolve the conflict in favour of the defendant, in this case the mother, she cannot prove the defence of acquiescence. The burden of proof lies upon her and it is not therefore necessary to investigate whether the judge was justified in making findings of fact other than those crucial to his decision.
In summary the main points relied upon by the mother were that shortly after she telephoned him on 15 January the father consulted solicitors on 18 January. On 17 January he instructed estate agents to sell the matrimonial home which had been M.'s home. He subsequently took it off the market. On 28 January he arranged for the mother and M.'s belongings to be shipped to the United Kingdom. The judge found that the father had made no request to the mother to return or to return M. between 15 January when she said she was not returning until the Hague Convention application, despite telephone calls and solicitors' letters. Correspondence with solicitors dealt with contact and property matters on the basis throughout, as accepted by the father, that the mother and M. remained in the United Kingdom. Father saw the second set of solicitors in April and had some knowledge of the Hague Convention but took no steps under the Hague Convention until September when he went to his third set of solicitors. The father's affidavit of 27 May dealt with two months contact a year to M. in Australia on the basis that M. lived in England. The mother alleged the motivation for the Hague Convention application was because of property and contact difficulties. She also pointed to the father inviting a female friend and her two children at the beginning of April to share the former matrimonial home with him in April, a friendship which was immediately or shortly thereafter one of cohabitation.
The father's case on each of these matters was accepted by the judge. The father said he put the house on the market because he did not want to live in the house with memories but he took it off the market after a few days. The father sent the mother and M.'s belongings to keep the mother happy and to facilitate contact. His first solicitor led him to believe he could not get M. back and he wanted to keep friction to the minimum so she might return with M. The judge did not draw conclusions adverse to the father in respect of putting the house on the market or shipping the goods to England.
The most crucial part of the father's evidence related to the legal advice he was given by three sets of solicitors. The first solicitor was seen in January 1997 soon after the father knew the mother was not going to return to him. It seems clear that the first solicitor did not know about the remedy of the Hague Convention and conducted the correspondence entirely on the basis of contact to M. and property matters on the assumption that the mother would remain with M. in the United Kingdom. This solicitor was found by the judge to have given misleading advice and to have misinformed the father as to his rights.
The second solicitor was seen in April when the father was dissatisfied with the lack of progress with the first solicitor. The second solicitor told him according to the affidavit of 25 September in support of the application at page 37 paragraph 21:
"On 15 April I consulted another solicitor … about contact with M. I was told that I could apply to have M. returned to Australia but that if I was successful T. could apply to the court for an order which would allow her to return to Wales to live with M. I was not given any information about the Hague Convention and my understanding of the advice I received was that I would be wasting my time and money to even consider trying to get my son back from Wales as my wife would simply go to court in Australia and be given an order allowing her to return to live in Wales with M. By this time I was desperate to see and have contact with my son and I agreed to negotiations being undertaken for such contact."
The mother replied to that affidavit in support of the application in an affidavit of 29 October 1997 at page 54, paragraphs 36 and 37, in which she referred to the father's affidavit, paragraph 19, and pointed out that he was fully aware of his rights to apply for the return of the child, "if what he said was correct about the events surrounding M.'s removal from that country". The father then pointed out (at page 59 of his second affidavit of 29 October at paragraph 10):
"Although I ascertained from a newspaper article that the Hague Convention existed in April 1997, the Solicitor whom I was consulting at the time made it clear to me that I would not be able to obtain M.'s return to his habitual residence in Australia using this Convention. In this regard, paragraphs 36 and 37 of the Defendant's Affidavit are incorrect."
I now turn back to page 37, which was his first affidavit, in which the father went on to say in paragraph 21 that he showed his second solicitor
"in late April/early May … an article from a magazine. This article was about getting children back through the Hague Convention and Mr Walters told me I would be wasting my time. I insisted that it was still my belief that T. had kidnapped M. and my solicitor then said: `I think the only way I can see that you will see him, is if you go to the U.K, and see him there.'"
In the mother's affidavit of 29 October she pointed also to that paragraph as showing that he knew what his rights were under the Convention and that he...
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