W v W

In Hague Convention proceedings, acquiescence depends principally on the wronged parent’s actual state of mind, assessed from all the circumstances; practical assistance given to children in the place of retention does not necessarily establish acquiescence. Article 13(b) requires clear and compelling evidence of a grave risk of substantial harm or intolerability. There is no fixed age threshold for the child-objection exception. The court must assess the particular child, the circumstances and the nature of the objections. Once that threshold is met, return remains discretionary. Convention policy, the strength and authenticity of the objections, welfare, protective measures and age may be weighed. Separating siblings may itself create a grave risk of harm or intolerability.

The father applied under the Hague Convention for the summary return of three children from England to Southern Ireland. The children had been habitually resident in Ireland and their removal was wrongful. The mother relied on alleged acquiescence, Article 13(b), and the objections of the two older children.

The central issues were whether the father had acquiesced in the children’s retention, whether Article 13(b) applied, whether the older children objected and had sufficient age and maturity for their views to be considered, and how the resulting discretion should be exercised.

1. Acquiescence. The mother failed to establish that the father had acquiesced. Under Re H (Minors)(Abduction: Acquiescence) [1998] AC 72, the question ordinarily turns on the wronged parent’s actual state of mind, assessed as a question of fact in all the circumstances. The father’s assistance with housing, schooling, documents, employment and the children’s comfort was consistent with his hope of reconciliation and desire to protect the children while matters remained unresolved.
2. Article 13(b). The evidence did not establish the clear and compelling grave risk of substantial harm or intolerability required by Article 13(b). The children’s distress was relevant, but the court also considered undertakings and protective measures available through the Irish courts and social services.
3. Children’s objections. Article 13’s child-objection exception is distinct from Article 13(b). There is no absolute threshold age or presumption. The court must examine the attributes of the individual child, the circumstances and the nature of the objection. The observations of Baroness Hale in Re D (Abduction: Rights of Custody) [2006] UKHL 51 [2007] 1 AC 619 were applicable more widely to the child-objection defence.
4. The older children objected to return to Ireland. Their objections were based on their own experiences and fear of their father, were not shown to result from improper influence, and were sufficiently mature and age-appropriate. Following Re M and another (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288, the resulting discretion was at large and did not require an exceptional case. The court weighed Convention policy, the strength and authenticity of the objections, welfare, protective measures, age, settlement in England and the reduced force of immediate pursuit. It exercised the discretion not to order the older children’s return.
5. Younger child. Returning the youngest child without the older two would create a grave risk of psychological harm or otherwise place him in an intolerable position. The father’s application for the summary return of all three children therefore failed.

First-instance decision. No prior judgment or appeal is stated in the judgment.