A (A Child), Re

In an application under the Hague Convention, acquiescence depends on the wronged parent’s actual state of mind. The court must assess the evidence as a whole, giving particular weight to contemporaneous conduct and requiring clear and unequivocal words or actions before inferring acquiescence.

An Article 13(b) defence requires proof of a grave risk of physical or psychological harm or an intolerable situation. Where allegations are disputed, the court should consider whether the alleged facts would create that risk and whether protective measures could adequately address it.

Settlement requires more than adjustment to surroundings. It includes physical establishment in a community and environment, together with emotional security and stability.

Habitual residence is a question of fact, assessed by the child’s integration in a social and family environment.

The child, aged five, was removed by his mother from Latvia to England in January 2013. Following concerns about bruising, the local authority commenced care proceedings in April 2013 and placed him with foster carers. The father, who remained in Latvia, was not effectively notified of the proceedings for several months.

The father applied under the Hague Convention for the child’s return to Latvia. The mother relied on alleged acquiescence, grave risk under article 13(b), and settlement under article 12. The father also challenged the English court’s jurisdiction under Council Regulation (EC) No 2201/2003 and sought transfer to Latvia under article 15.

The central issues were whether a Convention defence was established and whether the child was habitually resident in England when the care proceedings began.

1. Hague application allowed in substance; return ordered. The removal was wrongful under articles 3 and 5 of the Hague Convention. The father had rights of custody under Latvian law, had not consented to the removal, and was exercising or would have exercised those rights.
2. The defence of acquiescence failed. Applying Re H (Abduction: Acquiescence) [1997] 1 FLR 872, the issue was the father’s actual state of mind. His conduct in contacting Latvian authorities and seeking information about, and the return of, the child was inconsistent with acquiescence. The mother’s evidence about later communications was unreliable. Inaction, particularly before the father knew the child’s whereabouts or had legal advice, did not amount to clear and unequivocal acquiescence.
3. The article 13(b) defence failed. Applying Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758, the evidence did not establish a grave risk of harm or an intolerable situation. The history was inconsistent with the allegations relied upon, and information from Latvian authorities showed that support could be provided to the father in caring for the child.
4. The settlement defence also failed. Although the child had been in England for more than a year, much of that period had been spent in temporary foster care. Difficulties concerning language, schooling, multiple carers and continuing insecurity meant that he was not established in a community and environment with the necessary emotional security and stability. The court adopted the approach described in Re M (Abduction: Zimbabwe) [2008] 1 FLR 146 and Cannon v Cannon [2005] 1 FLR 169.
5. Habitual residence was considered for clarification. Applying A v A & Anor (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, the child remained integrated in Latvia’s social and family environment. His short and unsettled period in England did not displace his habitual residence in Latvia. Under articles 8 and 10 of B2R, the English court therefore lacked jurisdiction to determine the care proceedings, save for the limited purposes of article 20.
6. The child was to be returned to Latvia, with practical arrangements to be addressed after submissions.

First-instance decision. No appellate history is stated in the judgment.