IO (A Child), Re

In Hague Convention child-abduction proceedings, a defence of acquiescence requires clear and unequivocal evidence, assessed by examining the wronged parent’s conduct as a whole and giving particular weight to contemporaneous words and actions. Attempts to negotiate or reconcile do not readily establish acquiescence.

Under Article 13(b), the opposing party bears the burden of proving a grave risk of physical or psychological harm, or an intolerable situation, if the child is returned. The assessment is prospective and must take account of the protective measures available on return. Ordinary disruption, anxiety, or concerns falling short of substantial and serious harm do not satisfy the exception. Where neither exception is established, the court must order the child’s prompt return.

The father applied under the Hague Child Abduction Convention 1980 for the summary return of his son, aged five, to Ukraine. The mother accepted that the child’s removal to England was wrongful but opposed return on the grounds that the father had subsequently acquiesced in the child remaining in England and that return would expose the child to a grave risk of harm under Article 13(b).

The mother relied on alleged domestic violence, substance misuse, controlling behaviour and concerns about the child’s care in Ukraine. She did not attend the final hearing because of postnatal depression and declined to participate by telephone. The central issues were whether either Convention exception was established and, if so, whether the court should exercise its discretion against return.

1. Acquiescence. Applying the guidance in Re H (Abduction: Acquiescence) [1997] 1 FLR 872, the court assessed the father’s conduct cumulatively. The relevant question was whether his words and actions showed clearly and unequivocally that he had abandoned, or would not assert, his right to seek the child’s summary return. The father’s efforts to recover the child, his refusal to sign a consent concerning residence, and the prompt issue of proceedings did not establish acquiescence. The defence failed.
2. Article 13(b). The mother bore the burden of proving a grave risk. The risk had to be substantial and serious, rather than merely the inevitable disruption and anxiety accompanying return, applying Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145. The court also applied the guidance in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27: the inquiry is directed to the future situation on return, including protective measures, and an intolerable situation is one which the particular child, in the particular circumstances, should not be expected to tolerate.
3. The evidence did not establish a grave risk to the child. The mother had previously left him in the father’s care and had agreed that he should spend substantial periods in Ukraine and have his principal residence there. Evidence from mutual friends and the child’s kindergarten indicated that he was well cared for. The concerns about sleeping arrangements and other details of care did not approach the Article 13(b) threshold.
4. The court noted the discretionary stage described in Re M (Abduction: Zimbabwe) [2007] UKHL 55, but neither exception was established. The court therefore ordered the child’s summary return to Ukraine.