F v M & Anor

Under Article 13(a) of the Hague Convention, acquiescence concerns the wronged parent's actual consent to the child's continued presence in the new jurisdiction, assessed subjectively from the evidence and any outward acts. Delay in commencing Hague proceedings does not, by itself, establish acquiescence. Where a child is settled after more than one year, the court retains a broad discretion under Article 12. It must weigh Convention policy, the child's welfare and objections, the circumstances causing the delay, and the suitability of the requested forum. The child's settlement is assessed practically and holistically. Concealment is relevant, but does not automatically prevent settlement. A return may be ordered, and its operation suspended, to enable the court of habitual residence to determine welfare issues effectively and promptly.

N, a Polish child, was wrongfully removed from Poland to England by her mother, M, without the consent of her father, F, in May 2006. F later applied under the Hague Convention and the inherent jurisdiction for N's return. M argued that F had acquiesced in the removal or retention under Article 13(a), and that N was settled in England within Article 12 because more than one year had elapsed before the Hague proceedings were begun.

The High Court considered F's conduct, the delay in issuing proceedings, N's settled life in England, her objections and troubled relationship with F, and the advanced state of the Polish proceedings concerning her welfare. The central questions were whether F had acquiesced, whether N was settled, and how the court's resulting discretion should be exercised.

1. Acquiescence. The burden under Article 13(a) was on M. Applying Re H (Abduction: Acquiescence) [1998] AC 72, the question was whether F had actually consented to N's continued presence in England. His subjective intention could be inferred from his outward conduct, but attempts to reconcile or negotiate contact did not ordinarily signify acquiescence. F had consistently pursued care of N through the Polish courts and authorities, and had neither consented to her remaining in England nor led M reasonably to believe that he had done so. The delay in issuing the Hague proceedings did not establish acquiescence.
2. Settlement. More than one year had elapsed, so return was no longer mandatory if N was settled in England. Settlement was assessed at the commencement of proceedings. The court applied the broad, fact-sensitive approach in Cannon v Cannon [2004] EWCA Civ 1330, reported at [2005] 1 FLR 169. Physical and emotional settlement were relevant. Concealment and subterfuge increased the burden of proving settlement and formed part of the factual context, but did not impose an automatic rule excluding the period of concealment. N was settled in her home, school and community despite M's conduct and the disruption of her relationship with F.
3. Discretion. Under Re M (Abduction: Zimbabwe) [2007] UKHL 55, reported at [2008] 1 FLR 251, the discretion under Article 12 was at large. Convention policy had to be weighed with the circumstances producing the exception, N's welfare and objections, and the wider consequences of return. The Polish court was substantially better placed to determine N's future because it had been seised before the removal, had heard extensive evidence and was already conducting welfare investigations. Nevertheless, N's settled life, objections, fears and current relationship with F required careful consideration.
4. The court considered that N's welfare would best be served by enabling the Polish court to complete its determination promptly. It therefore contemplated an order for N's return, suspended to allow M to participate personally in the Polish proceedings and seek variation of the interim custody order, with the suspension capable of being removed if there were no real progress or if the Polish court required N's earlier return.

First-instance decision. The judgment records no appeal or earlier decision in the same proceedings.