S (A Child)

Family Law Act 1986 section 41 is an internal jurisdictional deeming provision. It applies only for Part I of that Act and cannot determine habitual residence for Article 3 of the 1980 Hague Convention.

Acquiescence must be assessed by a realistic construction of the parties’ communications and conduct. Correspondence recording an agreement to permanent relocation, coupled with agreed contact arrangements implemented on that basis, may establish acquiescence even if the parent later retains the child. This conclusion does not relax the stringent burden upon an abducting parent who relies on acquiescence as an Article 13(a) defence.

The mother took S from England and Wales to Germany in February 2002 and proposed permanent residence there. The parties and their solicitors subsequently negotiated contact. S visited the father in Wales in June under arrangements which the mother said had been agreed, but the father began residence proceedings and retained S.

The mother sought S’s return through the German central authority under the 1980 Hague Convention. Bracewell J in the Family Division refused a return order. She held that section 41 of the Family Law Act 1986 prevented a change in habitual residence and that the father had neither agreed nor acquiesced in relocation.

The appeal concerned whether section 41 governed habitual residence for Article 3 of the Convention, whether the father had acquiesced, and whether any issue required remission for a further trial.

Appeal allowed unanimously. Thorpe LJ gave the judgment, with which Scott Baker J and Munby J agreed. The mother was entitled to a return order.

1. Section 41 of the Family Law Act 1986 did not apply. It is a deeming provision confined to Part I of that Act, which regulates jurisdictional and enforcement conflicts within the United Kingdom. It cannot control habitual residence for Article 3 of the 1980 Hague Convention, an international question governed by the Convention’s jurisprudence. Bracewell J therefore erred in treating section 41 as decisive.

2. Applying the guidance in Re H Ors (Minors) (Abduction; Acquiescence) [1998] AC 72, the court held that the father had acquiesced in S’s permanent relocation. The solicitors’ correspondence recorded his acceptance of contact arrangements on the stated premise that S would live in Germany. The mother acted on that agreement by sending S for contact. The father then resiled from it by commencing proceedings and retaining S.

3. A retrial was unnecessary. The decisive communications were agreed documentary material, and the father had not advanced below the factual dispute later suggested. The Court of Appeal was in as good a position as a trial judge to determine acquiescence. S was habitually resident in Germany by June 2002, the retention was wrongful, and no triable defence to return remained.

4. Although unnecessary to the outcome, Thorpe LJ agreed with Bracewell J that a residence order under section 8 of the Children Act 1989 carries the statutory prohibition on removal in section 13(1)(b). A separate prohibitory injunction is not required.

Arrangements for return and future contact were to be agreed or determined by the Court of Appeal.

• Court of Appeal (Civil Division) — allowed the mother’s appeal and held that she was entitled to a return order: [2002] EWCA Civ 1941.
• Family Division — Bracewell J, on 24 September 2002, dismissed the mother’s application for a return order under the 1980 Hague Convention, lifted the stay of the Welsh residence proceedings, and refused permission to appeal.