O (A Child)

In summary return proceedings under the Hague Convention 1980, the applicant must establish habitual residence, rights of custody and breach of those rights. A judge may determine those issues from written evidence in the usual summary manner. Oral evidence may be called without an application where the evidence is so confused or evenly balanced that no conclusion can otherwise be reached, but that is exceptional. Acquiescence is primarily a subjective inquiry. Silence and inactivity can in principle amount to acquiescence, but they require particularly careful evaluation.

The mother removed her daughter from Turkey to England on 4 October 2008. The High Court, Family Division, held that the removal was wrongful under the Hague Convention 1980 and ordered the child’s return to Turkey. The mother sought permission to appeal, challenging the findings of habitual residence, breach of the father’s rights of custody and acquiescence. She also argued that the High Court should have received oral evidence, although neither party had applied for it and the hearing had proceeded on written evidence in the conventional summary manner.

The central issues were whether the evidence supported the findings and whether the Turkish court’s interim order had authorised permanent removal.

1. Permission and disposition. The application for permission to appeal was refused. The proposed appeal was unarguable. The Court of Appeal agreed that the evidence was sufficient to support the High Court’s conclusions.
2. Habitual residence and evidence. The father had to establish that the child was habitually resident in Turkey immediately before removal, that he had rights of custody under Turkish law, and that the removal breached those rights. The judge was entitled to rely on the written evidence, including the mother’s recorded account of the family’s residential arrangements. A judge has power to call for oral evidence of his or her own motion, particularly in a child case, but this is an exceptional course. It is justified where the evidence is so confused or evenly balanced that a conclusion cannot otherwise be reached. That threshold was not met. The Court gave no encouragement to greater use of oral evidence in this summary jurisdiction.
3. Breach of custody rights. The Turkish order of 23 September 2008 discharged an earlier prohibition on removal from Turkey, but it did not authorise permanent or indefinite removal. The mother’s undertaking to return the child, the arrangements for a further hearing in Turkey, and the father’s provision for ten days’ contact every three months showed that removal was authorised only for a limited period. Permanent removal therefore breached the father’s custody rights for the purposes of Article 3.
4. Acquiescence. Under Re H (Abduction: Acquiescence) [1998] AC 72, acquiescence principally concerns the applicant’s subjective state of mind. The burden rests on the party alleging it. Active and passive acquiescence are not different in principle, although silence and inactivity are more difficult to rely upon than words and conduct. The father’s delay and failure to contact the mother did not make the refusal to find acquiescence plainly wrong. The English courts had determined only the forum for welfare issues, not the child’s long-term place of residence.

• Court of Appeal (Civil Division): On 16 October 2009, permission to appeal from the order of Mr Justice Moylan dated 27 August 2009 was refused. The stay of execution was extended until the hearing.
• High Court, Family Division: The court ordered the child’s summary return to Turkey under the Hague Convention 1980.