W v W (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Family Division |
WAITE, J
Child abduction – acquiescence – factors to be taken into account in deciding whether parent acquiesced in child's removal or retention.
Child abduction – custody rights – breach – whether parent exercising custody rights when agreeing to visit abroad.
Child abduction – discretion not to order summary return of child wrongfully removed or retained – factors to be taken into account.
The parents married in Australia in 1981. There was one child of the family, a boy born in 1987. In 1991 it was agreed that the mother and child should come to England for a holiday of six to eight weeks and they came to England in August 1991. Subsequently there was correspondence between solicitors in England and Australia to the effect that the marriage was at an end. On 6 December 1991 the mother's solicitors wrote to the father's solicitors stating that the mother did not intend to return to Australia. A copy of this letter was sent to the father on 12 December 1991. The father told his solicitors he wished to have access to his son but took no further action. Thereafter, until June 1992, the father remained out of communication with his solicitors and they did not know his address. The father contacted his solicitors in July 1992. As a result, his solicitors wrote to the mother's solicitors stating that, as the father believed the mother had decided to stay in England, he would like access to the child. In August 1992 the father stated that he first became aware of the provisions of the Hague Convention. He then applied for the child's immediate return to Australia.
The state of the marriage by 1991 was in dispute. The mother said it had come to an end by the beginning of that year, but this was denied by the husband. It was not disputed that Australia was the country of the child's habitual residence, nor that the parents had joint rights of custody. Further, it was not disputed that the child had been brought to England with the father's consent. The matters in issue were whether the father's rights of custody had been breached because he had consented to, or acquiesced in, the child's retention in England and, if so, whether the court should exercise its discretion not to make a summary order for the child's return to Australia.
Held – (1) The only evidence of the father's agreement to the child staying in England was a remark, made during the course of an argument before the visit to England, that he did not care if the mother and child stayed for six or 12 months. In the circumstances this could not be construed as a genuine authority to keep the child in England indefinitely. Further, it could not be said that, when the child left Australia, the father ceased to exercise his custody rights. His agreement to the child visiting England was an exercise of his custody rights and this was a continuing agreement until the end of October 1991 when the mother retained the child in England without his authority.
(2) In the context of child abduction, acquiescence meant acceptance. It could be active arising from express words or conduct, or passive arising by inference from silence or inactivity. It must be real in the sense that the parent must be informed of his general right of objection, but precise knowledge of legal rights and remedies, and specifically the remedy under the Hague Convention, was not necessary. It must be ascertained on a survey of all relevant circumstances viewed objectively in the round. It was in every case a question of degree to be answered by considering whether the parent had conducted himself in a way that would be inconsistent with him later seeking a summary order for the child's return. The present case was a very plain instance of the father's acquiescence through inactivity. For about 10 months after learning of the mother's decision not to return the child to Australia he took no steps towards having him returned and for much of that period his address was unknown, even to his solicitor. That conduct was wholly inconsistent with his later seeking a summary order under the Convention.
Re A (Minors) (Abduction: Custody Rights)[1992] 2 FCR 97 and Re A (Z) (Child Abduction)[1993] 1 FCR 733 followed.
(3) As the mother had established that the father had acquiesced in the child's retention in England, the court was not bound to order the return of the child but had a discretion whether or not to do so. That discretion had to be exercised by taking into account all relevant factors. They included the welfare of the child, which was important but not paramount. A balance had to be struck between the need to fulfil the purpose and philosophy of the Convention through the return of the child on the one hand and any countervailing factors pointing on the other hand to the child being kept in England. Relevant to that consideration were the choice of forum, the possible outcome of any family proceedings in whichever forum was chosen, the consequences of the parent's acquiescence to the child's retention, the situation that would await the mother and child if a return order were to be made, the anticipated emotional effect on the child of a peremptory return order, and the extent to which the purpose and philosophy of the Convention would be at risk of frustration if a return order were to be refused in the particular circumstances of the instant case. In the present case the considerations for choice of forum were very evenly balanced. The prospective outcome of family proceedings was that the mother would be granted a residence order in either jurisdiction and a real possibility that the mother would be successful in her request to the court to live in England. As a result of the father's acquiescence the child had started school in England almost a year ago and expected to remain in England. The father had made no firm proposals for the mother's financial support and past history suggested that maintenance would immediately become a serious bone of contention. The emotional effect of a return order on the child would be significant but it should not be exaggerated as it was implicit in the operation of the Convention that the objective of stability for the mass of children might have to be achieved at the price of tears in some cases. When considering the purpose and philosophy of the Convention it was relevant to look at the conduct of the father to consider how far that had been consistent with the Convention's underlying aims. He could not be contacted for about seven months and his conduct left the impression that he had never singlemindedly
committed himself to the return of the child to Australia. In all the circumstances, the refusal of an return order in this case would run less risk than in most cases of coming into conflict with the purpose and philosophy of the Convention. This was a case where the demands of loyalty to the spirit and purpose of the Convention must yield to counterbalancing considerations of public policy and child welfare. The father's application would accordingly be dismissed.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction, Articles 3, 12 and 13.
Cases referred to in judgment:A (Minors) (Abduction: Custody Rights), Re[1992] 2 FCR 97; [1992] Fam 106; [1992] 2 WLR 536; [1992] 1 All ER 929.
A (Minors) (Abduction: Custody Rights) (No 2), Re[1993] 1 FCR 293; [1993] Fam 1; [1992] 3 WLR 538; [1993] 1 All ER 272.
A (Z) (Child Abduction), Re[1993] 1 FCR 733.
Michael Hosford-Tanner for the father.
Sheron Bedell-Pearce for the mother.
MR JUSTICE WAITE.A five o'clock in the morning of 20 August 1992 the telephone rang in the home of a mother who had been living in this country for the past 12 months as a single parent, having the care of her 5-year-old son. The caller was the child's father, speaking from Australia. He asked to speak to a son who had not heard his father's voice for over a year. Permission was...
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