Re A (Z) (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Year | 1993 |
| Date | 1993 |
| Court | Family Division |
BOOTH, J
COURT OF APPEAL
29 JULY 1992
SIR DONALD NICHOLLS, V-C, BUTLER-SLOSS, LJ AND SIR MICHAEL KERR
Child abduction – acquiescence – conduct of applicant to be viewed objectively – specific knowledge of Hague Convention not necessary – sufficient if applicant knew facts and that the act of retention was wrongful – acquiescence to be clear but not necessarily to an unchangeable state of affairs – acquiescence to be conduct inconsistent with summary return of child.
Child abduction – wrongful retention – child's habitual residence in Germany – mother brings child to England for visit – during period of visit mother deciding not to return and aunt applying for residence order – whether mother's decision and aunt's application amounted to wrongful retention.
The mother, who was English, married an American serviceman in 1989. In January 1991 the father was stationed in Germany where, in February 1991, their son was born. In October 1991, with the consent of the father, the mother came to England for a visit. The parents agreed that the mother and child should stay with her family, the father would join them for Christmas, and they would return to Germany together in January 1992. The mother formed an association with another man. She left the child in the care of an uncle and aunt in November. The father was told of the situation. He did not come to England immediately but asked the aunt to care for the child until Christmas. On 19 December 1991 the aunt, on an ex parte application, was granted a residence order and a prohibited steps order in a county court. The Judge found that the purpose of the orders was to prevent the father taking the child back to Germany. The orders were served on the father when he arrived in England on 21 December 1991. He filed an answer to the aunt's application in which he stated that he agreed with the aunt's plans for the child and that he did not intend to make an application. The father then obtained Californian divorce papers with a view to initiating divorce in that State. He sought joint custody with care and control
of the child to himself. On 27 December 1991 the father drew up and executed a power of attorney in favour of the aunt to deal with the health, welfare, and education of the child which was effective for one year. He handed the aunt the child's social security papers and birth certificate. The father then returned to Germany. Although notified, he did not attend a directions hearing on 17 January 1992 in relation to the aunt's application. The final hearing of that application was set down for 14 May 1992. On 13 May 1992 the father issued an originating summons under the Child Abduction and Custody Act 1985 seeking the return of the child to Germany in accordance with the Hague Convention on the Civil Aspects of International Child Abduction. His application came before the Judge on 21 May 1992. The Judge held that there was a wrongful retention of the child within the terms of Article 3 of the Convention: (i) when the mother decided not to return to Germany in November 1991; and (ii) when the aunt made her ex parte application to the county court in December 1991. The Judge further held that the father had not acquiesced in the retention of the child within the terms of Article 13 of the Convention. She therefore ordered that the child be returned to Germany.
The aunt appealed.
Held – allowing the appeal: The Judge was entirely justified in her conclusions under Article 3 of the Convention (Sir Michael Kerr dubitante) that the child was wrongfully retained. However, in considering under Article 13 of the Convention whether the father had acquiesced in the retention, it was necessary to view the conduct of the father objectively and the effect which, to his knowledge, it conveyed to the aunt. He did not attend the directions hearing on 17 January 1992 in relation to the aunt's application for a residence order. In his answer to that application he did not indicate that he wished to take over the care of the child himself. He indicated agreement to the aunt's solicitor and he executed a power of attorney in favour of the aunt. In order for a parent to be held to acquiesce in wrongful retention it did not have to be shown that he had specific knowledge of the Hague Convention. It was sufficient if he knew the facts and that the act of retention was wrongful. The father's acts led irresistibly to the conclusion that he was making a clear decision to leave the child with the aunt for a period not limited to a few days or even weeks but, in view of his grant of the power of attorney, for a period of a year. Acquiescence had to be clear but it did not have to be an acceptance of an unchangeable state of affairs. There was nothing incompatible with acquiescence to the continuance of wrongful retention and an application for care and control in the Californian courts which would take place at a later date. Acquiescence had to be conduct inconsistent with the summary return of the child to the place of habitual residence. Therefore, the direction of the Judge that the child be returned to Germany would be set aside and the case would be remitted to the High Court for consideration whether the child should or should not be returned to the jurisdiction of the German courts.
Per Sir Michael Kerr: It was doubtful whether the uncommunicated decision of the mother in November 1991 not to return the child in January 1992 could constitute wrongful retention in November 1991. The ex parte application for a residence order by the aunt in December 1991 amounted to wrongful retention, though it seemed odd that an otherwise lawful and open application to a court could constitute wrongful retention.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction, Article 3, 12 and 13.
Case referred to:A (Abduction: Custody Rights), Re[1992] 2 FCR 97; [1992] Fam 106; [1992] 1 All ER 929.
FAMILY DIVISION21 May 1992
Andrew Ritchie for the father.
Camilla de Sousa Turner for the aunt.
MRS JUSTICE BOOTH.This is a sad case in many ways and an unusual one, brought under the Child Abduction and Custody Act 1985 and the Hague Convention, which the Act ratified, by a father in respect of a very young child indeed, a little boy born on 4 February 1991.
The defendants to the originating summons are the mother (the father's wife, as she still is), and the mother's sister and her husband [the aunt and uncle]. The little boy is presently living with them. The father seeks his return to the country of his habitual residence which is Germany.
Before I embark upon the facts and my findings on the facts and decisions on law, I will say a few words about the 1985 Act. It was passed in order to bring into effect two Treaties that the United Kingdom had signed with other signatories; the Hague Convention and the European Convention. The purpose of those Conventions and the Act which gives them force in this country is to discourage international child abduction and to secure so far as possible as quickly as possible the return of a child wrongfully removed or retained from the country of his or her residence. The Conventions are very clear and are very strict. The Hague Convention requires the court, without the exercise of any discretion as to what is in the best interests of the child, to return a child wrongfully removed or wrongfully retained unless one of a very few set of facts is found to exist.
The relevant fact in this case upon which the mother and the aunt and uncle resist the father's application is that, it is said, he has acquiesced in the child's retention in this country. Indeed, counsel, Miss de Sousa Turner, goes further than that; she says that there is no wrongful retention of the child on the facts of this case.
If acquiescence is found on the part of this father – that is, an acceptance or a clear agreement to the child remaining in this country – that does not of itself mean that the court must refuse his application. It only opens the way to a discretion – the court in its discretion may refuse to send the child back, in this case, to Germany, that discretion to be exercised in the best interests of the child. The discretion only arises if acquiescence is found proved or, indeed, if there is no wrongful retention. If there is a wrongful retention and if I do not find acquiescence on the part of the father, then I am bound by the Convention to send the child back without further consideration.
And that is without deciding in whose custody the child should be for the future or making any arrangements other than those which will relate solely to his return:
this court will not be looking to his future. That would have to be a matter for the appropriate court, either in Germany or, in this case, in the United States.
I propose to cite the passages to which Miss de Sousa Turner has already referred in one of the leading authorities on the question of acquiescence, that is in Re A (Abduction: Custody Rights) a case in the Court of Appeal which is reported at [1992] 2 FCR 97. Stuart-Smith, LJ at the opening of his judgment in that case said this:
"Under the provisions of Article 12 of the Hague Convention on Civil Aspects of International Child Abduction, which has force of law in the United Kingdom by virtue of s.1(2) of the Child Abduction and Custody Act 1985, where a child has been wrongfully removed or retained the court of the State to which it has been removed must order its return, if the application is made within a year of the removal or retention. Article 13 provides two exceptions to this rule which, if satisfied, afford a discretion to the court to consider whether or not the child should be returned. The first exception, so far as it relates to this case is where the father `had consented to or subsequently acquiesced in the removal or retention'. The reference to consent appears to mean...
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