H v H

Under the Hague Convention, consent to a child’s temporary departure does not establish consent to permanent removal. Consent must be proved by the parent relying on it, on the balance of probabilities, by clear and cogent evidence.

Acquiescence depends principally on the wronged parent’s actual state of mind. Inactivity caused by reliance on incorrect legal advice may therefore fall short of acquiescence, unless the parent’s conduct unequivocally led the other parent to believe that summary return would not be sought.

Where a child objects to return, the court must first decide whether the child objects and has sufficient age and maturity for the views to be considered. If so, the court retains a discretion, taking account of the objection, its reasons, settlement, elapsed time and all the circumstances.

The father applied under the Hague Convention for the summary return of two children from England to Australia. The children had been habitually resident in Australia, and the father had rights of custody. The mother accepted that the father had agreed to their departure but said that he had consented to a permanent move and later acquiesced in their retention in England.

The mother also relied on the children’s objections under Article 13. The father disputed consent, acquiescence, and the children’s age, maturity and objections. The court had to determine the Article 13 defences and, if the children’s objections passed the gateway requirements, whether to exercise its discretion to refuse return.

1. Consent. The mother bore the burden of proving consent. Following Re: C (Abduction: Consent) (1996) 1 FLR 414, proof was required on the balance of probabilities, but the evidence had to be clear and cogent. The father had consented to an extended holiday, not to a permanent removal. The defence therefore failed.
2. Acquiescence. Acquiescence was a separate issue arising after the mother’s departure. The burden remained on the mother. The court applied the subjective approach described in Re: S (Minors)(Abduction: Acquiescence) (1994) 1 FLR 836 and Re: H (Abduction: Acquiescence) (1997) 1 FLR 872. The father’s apparent inactivity was substantially explained by incorrect legal advice that he could not compel return. His conduct did not establish the necessary consent or acquiescence. The exception identified in Re: H, concerning unequivocal conduct leading the other parent to believe that summary return would not be sought, was not made out.
3. Children’s objections. The court adopted the two-stage gateway approach described by Waite LJ in Re: S (Minors)(Abduction: Acquiescence) (1994) 1 FLR 826: first, whether the children objected to return and had sufficient age and maturity for their views to be considered; and second, if so, whether return should nevertheless be ordered. Age alone was insufficient. The children’s objections could include objections inextricably linked to living with the father, provided the court assessed their reasons and the effect of parental influence.
4. The children, aged 11 and 9, were intelligent and articulate, had settled successfully in England, and objected clearly and strongly to returning to Australia. Their views were not shown to have been prompted by the mother. Their objections arose from their settled life, schooling, friendships and negative experiences of their father. The gateway requirements were satisfied.
5. Discretion and outcome. In exercising the Article 13 discretion, the court considered the children’s objections, their settlement, the passage of almost a year and their strong reaction to return. Despite the Convention’s policy favouring summary return, it would be wrong to order return. The application was dismissed.