Re WA (A Child) (Abduction) (Consent; Acquiescence; Grave risk of Harm or Intolerability)

Hearing dates: 5 – 6 November 2015

Issues

In these proceedings for summary return under the Hague Convention and Brussels IIR, two issues arise. First, did the father consent to or acquiesce in the child's removal from his home state? Second, would a return expose the child to grave risk of psychological harm or otherwise place him in an intolerable position?

Background

The background as relevant to those questions is this. The parents are both nationals of their home state. Their relationship began more than 10 years ago. They are married. There are two children of the family – K, the mother's child from a previous relationship, whom the father adopted (she is 15 and a party to though not a subject of these proceedings); and A who is 8 the parents' natural child.

During the summer of 2014, the relationship between the parents came to an end. By July, according to the father's evidence, " the marriage was over." In September, they separated thereafter occupying different homes. K and A lived with the mother. As K described when she gave evidence, before she came to this country her " parents had been fighting all the time" which had caused everyone to be " stressed."

Litigation history

In February this year, the mother consulted lawyers in her home State. On 18 February, by which time she and the children were already in England, those lawyers issued proceedings for divorce and to limit the father's parental responsibility. The applications are currently stayed pursuant to an order of 19 July as is usual where an application under the Convention is pending.

In March, according to the father's evidence, he was in the process of preparing his application under the Hague Convention. His application to the Central Authority in his home country was made on 17 April. At the end of May, the International Child Abduction and Contact Unit here instructed Solicitors. The application was launched on 5 June 2015.

The proceedings began in the normal way. A Tipstaff order was made and executed. The mother was personally served a few days later. The first inter partes directions' hearing on 15 June was not as effective as it might have been because, by then, the mother had not indicated her precise reaction to the application.

With the assistance of her Solicitors, specialists in this field, the mother's formal Answer was swiftly prepared. It identified that she opposed the summary return application, relying on Article 13A; and had "given instructions that the father was fully aware that she was relocating to England and that he also had intentions to relocate in June…" [I pause to observe that those facts do not disclose a 'defence' founded either on consent or acquiescence]. In addition, the mother relied upon Article 13B identifying that K was " categorically opposed to a return" and that a return for A " would involve separation of the siblings."

On 24 June, with the assistance of Solicitors, K applied to be joined as a party to the proceedings.

On 25 June the case was listed for directions and was adjourned to 27 July, with a time estimate of one day, for determination of the issue as to whether K should be joined.

On 27 July, exactly seven weeks after the application was issued, and for the first time, the proceedings were set down for final hearing on 21 September with a time estimate of two days. K was joined in accordance with her wishes.

There were then two pre-trial reviews, the first on 9 September when consideration was given to the filing of further evidence, the father's willingness to offer undertakings in the event of a return order and a list of topics about which the father's legal team wished to cross examine K.

The order resulting from the second pre-trial review on 17 September reflected that it had not been possible to resolve the issue as to whether K should give oral evidence. She was directed to attend on 21 September and to be prepared to give oral evidence, if required.

On 21 September the final hearing was adjourned because the mother's public funding had been withdrawn just three days earlier on 18 September. The mother's Solicitors were afforded an opportunity to take such steps as they could to secure public funding. The case was re-listed over two days on 5 and 6 November.

I mention the litigation history because as is well known, there is an imperative to handle cases of this kind at speed.Paragraph 2.13 of Practice Direction 12F contains the guidance in relation to the time table: "Proceedings to which the Council Regulation apply must be completed in 6 weeks 'except where exceptional circumstances make this impossible'" – a reference to the Court of Appeal's decision in In Vigreux v. Michel and anor[2006] EWCA Civ 630. The Practice Direction also identifies a number of procedural steps including a requirement for the court file to be marked to state the "hear-by date," so as to instill urgency and ensure that applications under the Convention and Regulation are dealt with swiftly.

For reasons that I have not inquired into, beyond perusing the terms of the various orders made at each stage, these proceedings never progressed at the speed ordinarily expected. The result is that A has been living in this country for far longer that would ordinarily be the case at the end of proceedings under the Hague Convention. Had the case proceeded at the usual pace, a decision should have been arrived at by the end of July or, making allowances for the impact of the long vacation, by the end of August at the latest.

It causes great anxiety and regret that these proceedings have taken not six weeks but five months to bring to a conclusion.

One of the issues which had caused the proceedings to slow down, even stall (namely whether or not and if so how K should give evidence) was resolved by agreement at this hearing. At the end of the first day, after I had heard the mother's evidence and mid way through the father's testimony, at the Bar's invitation, I indicated that for my part it would not be necessary for K to come to court. By then I knew how the mother put her case, how the father responded; and I had been able to formulate an analysis of the relevance of K's evidence to the issues of consent and acquiescence. I also knew from the report of Mr John Power what was said about A's views as well as Mr Power's significant analysis of the likely impact upon A of a return either with or without his mother and sister.

Whilst indicating that there was no requirement for K to give evidence, I made clear that if she positively wished to do so I would be very content. The choice was left to her and she decided to participate orally.

Law relating to consent and acquiescence

The law in relation to consent and acquiescence was summarised by Keehan J in Re H, R and E (Abduction: Consent: Acquiescence) [2014] 2 FLR 385. The following passage from the speech of Lord Browne-Wilkinson in of the House of Lords in the case of H v H (Abduction: Acquiescence) [1997] 1 FLR 872 remains the locus classicus in relation to acquiescence.

"i) Acquiescence was a subjective state of mind. In English law acquiescence was normally viewed objectively but under the Hague Convention it must have the same meaning and effect under the laws of all Contracting States.Art 13 looked to the subjective state of mind of the wronged parent.

ii) Acquiescence was a pure question of fact. The court could infer the actual subjective intention from the outward and visible acts of the wronged parent.

iii) Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted child.

iv) The burden of proving that the wronged parent had acquiesced was on the abducting parent.

v) The only exception to this general principle under Art 13 of the Convention was where the words or actions of the wronged parent clearly and unequivocally showed and led the other parent to believe that he was not asserting or going to assert his right to summary return of the children and were inconsistent with such a return."

In Re H, R and E Keehan J also took account of the decision in D v S (Abduction: Acquiescence) [2008] 2 FLR 293, that: "The Hague Convention cases on consent required a true and unequivocal consent …" He accepted, as I do, that consent and indeed acquiescence can be inferred from the circumstances of the case. He referred to Re K (Abduction: Consent) [1997] 2 FLR 212 in which Hale J. (as she then was), said at 217–218:

"It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from...