BT v JRT

Under Article 13 of the Hague Convention, a parent may consent or acquiesce to a child remaining abroad for a specified period and subject to clear conditions, including arrangements for future contact. The conditions must be clear, readily determinable, intended to bind both parties, and free from fraud, misunderstanding or deceit. A later change of mind does not invalidate genuine acquiescence unless it shows that the apparent acquiescence was not real. Where acquiescence gives the court a discretion whether to order return, the court must balance Convention policy with the child’s circumstances, including settlement, the likely outcome of proceedings in the state of habitual residence, and the effect of return on the child and primary carer.

The father applied under the Hague Convention for the summary return of his two-year-old daughter to Australia. The mother resisted the application under Article 13, alleging that the father had acquiesced in her remaining in England and that return would expose the child to grave risk of physical or psychological harm or place her in an intolerable situation.

The father accepted that, during a recorded telephone conversation, he agreed that the mother and child could remain in England for five years, provided the child visited Australia annually after 2008. He later sought to withdraw that agreement. The central questions were whether his words and conduct amounted to clear and unequivocal acquiescence, whether any acquiescence was invalidated by deceit, and how the court should exercise its discretion if Article 13 applied.

1. Acquiescence established. The father’s words and conduct demonstrated a subjective consent to the mother and child remaining in England. His acceptance of the separation, arrangements for future visits, disposal of family property, sending of belongings and photographs, termination of the former family home, and statement that the mother was not returning were decisive indicators. He knew of the Hague Convention and was not acting in emotional confusion.
2. Conditional acquiescence valid. The recorded conversation produced an agreement that the mother and child could remain in England for five years, conditional upon annual visits to Australia after 2008. Consent or acquiescence may be conditional. The terms must be clear, readily determinable, intended by both parties to be binding, and not obtained by fraud, misunderstanding or deceit.
3. No invalidating deceit or withdrawal. The mother had not deceived or misled the father. His later withdrawal arose from pique at her lack of enthusiasm for his proposed arrangements, rather than from any failure of the original agreement or emotional turmoil that demonstrated the acquiescence was unreal. The later withdrawal therefore did not terminate or invalidate the agreement.
4. Discretion. Following the guidance in Re M and another (Children) (Abduction: Rights of Custody) (2007) 3 FLR 975, the discretion under the Convention was at large. Convention policy favouring return had to be balanced against the child’s settlement in England, the mother’s justified fear and severe anxiety, the likely restrictions on the father’s contact, the prospects of the mother obtaining permission to relocate, and the disruption caused by a return followed by a possible further move.
5. After anxious consideration, the court exercised its discretion not to order the child’s return to Australia.

not stated in the judgment.