W v W (Child Abduction: Acquiescence)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Court | Family Division |
SIR STEPHEN BROWN, P
Child abduction – acquiescence – children wrongfully removed from United States – father instructing American attorney and English solicitors – on advice father agreeing to mother having custody of children in England – attorney and solicitors ignorant of Hague Convention – whether father had acquiesced in retention of children in England.
The parents, who were British, married in England in 1984. In 1985 they went to live in the United States of America. They had two children, a boy born in 1987 and a girl born in 1988. In January 1991 the mother brought the children to England. This was a wrongful removal in the terms of Article 3 of the Convention on Civil Aspects of International Child Abduction ("the Hague Convention"). On arrival in England the mother immediately commenced divorce proceedings and sought custody of the children. The father instructed an attorney in the United States. On the attorney's advice, the father instructed English solicitors. In March 1991 the father's English solicitors wrote to the mother's solicitors stating that the father did not oppose the mother's application for custody of the children and agreed to them being brought up in England. Later, the father learned of the Hague Convention and in May 1991 applied for the return of the children to the United States.
Held – refusing the application: The court was not bound to order the return of the children forthwith in accordance with Article 12 of the Hague Convention if the mother established under Article 13 that the father had subsequently acquiesced in the retention of the children. In this case, although the father was in ignorance of the provisions of the Convention before agreeing to the mother having custody of the children, he could not rely on either the American attorney's or the English solicitors' professed ignorance of the provisions of the Convention. The father clearly agreed, on advice, to the mother having custody of the children in England. In those circumstances, the mother had established that he had acquiesced in the retention of the children.
Catriona Murfitt for the father.
Martin Evans for the mother.
SIR STEPHEN BROWN, P.This is an application under the provisions of the Child Abduction and Custody Act 1985 by a father, seeking the return of his two children to
the jurisdiction of the United States pursuant to the provisions of the Hague Convention which forms Sch 1 to the Child Abduction and Custody Act 1985.
The children concerned are the children of the father and his wife. They are a boy born on 27 May 1987 and a girl born on 20 July 1988. The mother and father were married in England in July 1984. They are both British, and they left this country to live in the United States in August 1985 where the father obtained employment as a thermal engineer. The children were born in the United States, and the parties were living in the United States at the time when the children were taken from the United States by their mother and brought to England. There is no issue about the fact that the mother did take the children without the father's knowledge on 21 January 1991. She left a note, which is exhibited to the father's affidavit, exhibit STW1. It stated, "I have gone to stay with some friends for a couple of days", and some other matters, but clearly did not indicate that she was intending to remove the...
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