D v S

In Hague Convention proceedings, consent to a child’s removal must be true and unequivocal. An apparent agreement based on a material misunderstanding or non-disclosure does not prevent removal being wrongful. Acquiescence may be subjective, based on an adequately informed decision not to seek summary return, or exceptional, where conduct clearly and unequivocally conveys that the right to seek return will not be asserted.

Legal advice forms part of the knowledge relevant to subjective acquiescence. A parent who receives advice addressing the Convention and acts on it generally bears the consequences of that decision, even if the advice is wrong. The court may refuse a discretionary return where delay and uncertainty mean that return would no longer promote the child’s welfare. On the welfare decision, both parents were treated as primary carers where the child had experienced genuine shared care and two homes.

The father sought the return of E, who had been habitually resident in Mexico, under the Hague Convention and the court’s inherent jurisdiction. The mother opposed return and sought orders under the Children Act 1989 enabling E to live in England.

The court found that the mother had left Mexico intending not to return and had not disclosed that intention to the father. The father had understood the move to England to be temporary and had consented on that basis. He later received legal advice that a Hague Convention return application would not succeed and did not issue proceedings until leading counsel advised otherwise. The central issues were consent, acquiescence, the discretionary return jurisdiction and E’s welfare.

1. Hague Convention. The Convention applied. The father had not consented to E’s removal because the mother knew, or ought to have known, that he was proceeding on a materially different understanding of the proposed move. Consent had to be real, unequivocal and sufficiently informed; an overlap in parental intentions was insufficient. The reasoning in Re P (Abduction: Consent) [2004] 2 FLR 1057 was applied.
2. Acquiescence. The mother established subjective acquiescence. The father knew of the Convention, had provided sufficient facts to obtain advice on a possible summary return, and made an informed decision not to bring proceedings after receiving advice that such a claim would not succeed. The fact that the advice was wrong did not permit him to reopen that decision. The court also found exceptional acquiescence because his conduct, including the Mexican divorce proceedings and his participation in English proceedings, conveyed that welfare issues would be decided in England.
3. Discretionary return. Although a return would probably have been ordered had the case remained a conventional Hague Convention application, the full welfare enquiry and the passage of time meant that a further return would cause delay, uncertainty and upset. The court therefore refused a return for the purpose of enabling the Mexican courts to determine E’s welfare.
4. Welfare. E’s welfare was paramount. Neither parent could properly be treated as the sole primary carer: since 2003 the arrangements had amounted to genuine shared care, with E having two homes. The court assessed the likely emotional effects of each parent’s disappointment, the parents’ ability to adapt, E’s wishes, his incomplete settlement in England, and the stability offered by each country. Those factors largely balanced out. Mexico provided the stronger prospect of medium- and long-term security, certainty and stability, and the father was given permission to take E there. Further contact and related arrangements were left for later consideration.

The judgment records that the Court of Appeal directed a full hearing of the Hague Convention, inherent-jurisdiction and welfare issues. No citation for that decision is stated. The High Court determined the issues at first instance.