De L v H

In Hague Convention proceedings, wrongful retention may arise later than the date on which a child is not returned if the initial non-return results from genuine practical impediments, but the retaining parent subsequently adopts a deliberate refusal to secure return. Acquiescence depends primarily on the applicant’s subjective state of mind. The burden lies on the retaining parent, and clear and unequivocal conduct must ordinarily lead the other parent reasonably to believe that return will not be sought.

Where a child objects to return, the court must first determine whether the objection is genuine and whether the child has sufficient age and maturity for the views to be considered. The court must then exercise its discretion, assessing the reality and soundness of the objections, parental influence and the likely effect of return. In exceptional cases, strong, rationally grounded objections may justify refusing return.

The applicant mother, habitually resident in Portugal, sought the return of her 13-year-old son under the Hague Convention after he remained in England following an agreed holiday with his father. The father initially said that the child had destroyed his travel documents and later accepted that he had found the British passport but did not disclose it. The mother alleged wrongful retention from 4 September 2008. The father relied on acquiescence, grave risk of an intolerable situation and the child’s objections under Article 13 of the Convention.

The court determined when wrongful retention occurred, whether the mother had acquiesced, whether the grave-risk defence was established, and whether the child’s objections justified refusing a return order.

1. Wrongful retention. The father had made proper efforts to secure the child’s return on 4 September 2008, but the absence of travel documents and the mother’s lack of co-operation frustrated those efforts. Retention on that date was therefore not wrongful. By the end of October 2008, however, the father had placed the child in an English school, understood that Convention proceedings might be brought, and had adopted a deliberate policy of opposition and non-co-operation. Wrongful retention was established from that date.
2. Acquiescence. Under Article 13, acquiescence depends on the subjective state of mind of the complaining parent and is a question of fact. The burden rests on the abducting parent. The exception is where the applicant’s words or conduct clearly and unequivocally show, and lead the other parent to believe, that the right to summary return is not being asserted. The mother’s refusal to assist with travel documents, delay in commencing proceedings and failure to visit the child did not establish acquiescence. Her continuing protests and belief that the father could secure return were inconsistent with it.
3. Article 13(b). The father failed to establish a grave risk that return would expose the child to physical or psychological harm or an intolerable situation.
4. Child’s objections. The child clearly objected to return and was of sufficient age and maturity for his views to be taken into account. The court considered whether his objections were rooted in reality, whether they reflected his own interests, whether they resulted from undue parental pressure and whether they would be modified on return. His objections were mature, rational and soundly based, and were unlikely to diminish.
5. The child’s objections were sufficiently exceptional to justify exercising the discretion against return. The application was refused. The court noted that the Portuguese court might nevertheless invoke Article 11 paragraphs 6–8 of B2R.