F (Abduction: Acquiescence: Child's Objections)

Under the Hague Convention, wrongful retention ordinarily requires the summary return of a child to the country of habitual residence. Acquiescence depends primarily on the wronged parent’s actual state of mind, assessed in the circumstances as a whole. Clear and unequivocal conduct may nevertheless make it unjust to permit reliance on the right to summary return.

A child’s wishes or preference to remain with the abducting parent or near extended family do not necessarily amount to an objection to returning to the country of habitual residence. The gateway inquiry has a fairly low threshold, but the court must distinguish objections from preferences. If the gateway is crossed, the resulting discretion is at large and must consider Convention policy, the child’s welfare, the authenticity and strength of the views, and the circumstances of the case.

Four children, aged between nine and thirteen, travelled from Australia to England for an agreed holiday with their father. The father wrongfully retained them after the planned return date. The mother sought their summary return under the Hague Convention.

The father relied on two Article 13 grounds: alleged acquiescence by the mother and the children’s objections to returning to Australia. The mother denied acquiescence and contended that the children expressed preferences rather than Convention objections. The court also considered whether the Family Court should have transferred the mother’s earlier domestic application to the High Court and notified the appropriate central authority.

1. Acquiescence. The burden of proof rested on the father, on the balance of probabilities. Applying In Re H and Others (Minors)(Abduction: Acquiescence) [1997] 1 FLR 872, the question was the mother’s actual state of mind, assessed principally from contemporaneous words and conduct. The exceptional rule based on objectively clear and unequivocal conduct did not apply. The mother’s texts, viewed in their totality, repeatedly sought the children’s return. Her return to England, mediation attempt and domestic proceedings were explained by financial pressure, inadequate advice and the surrounding circumstances. She had not acquiesced.
2. Children’s objections. The assessment had to be made separately for each child. All four children were sufficiently mature for their views to be considered. Applying the approach in Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, the gateway inquiry was straightforward and robust, without technical sub-tests. Nevertheless, each child’s evidence established wishes and preferences to remain in England, particularly near the wider family and with the father, rather than an objection to returning to Australia. The gateway was therefore not satisfied.
3. Discretion. The court stated, obiter, that even if the gateway had been crossed it would have ordered return. The discretion under Article 13 was at large, as explained in Re M (Abduction: Zimbabwe) [2008] 1 FLR 251. Convention objectives, welfare, the authenticity and strength of the children’s views, and the circumstances created by the wrongful retention were relevant. The children’s views had been formed within a financially comfortable “bubble of respite” and against a climate of negativity towards the mother. Their return to the primary carer with whom they had lived for more than seven years was not inconsistent with their welfare.
4. The father should have applied to the Australian court before retaining the children. The children were ordered to be summarily returned to Australia. Further submissions were required concerning the period allowed for return and financial arrangements.