WA (A Child) (Abduction) (Consent; Acquiescence; Grave Risk of Harm or Intolerability)

In summary return proceedings under the Hague Convention, consent to removal must be clear and unequivocal. Discussions or plans for a family relocation do not establish consent to one parent removing the child alone. Acquiescence requires a subjective acceptance of the child’s retention, proved through words or conduct which clearly and unequivocally indicate that the right to seek return will not be asserted. Attempts at reconciliation or negotiation do not, without more, amount to acquiescence.

Under Article 13B, the ordinary balance of probabilities applies. The court must assess the seriousness of the risk and any protective measures. Separation from a sibling may constitute grave psychological harm or intolerability, but the issue remains fact-specific. The exception was not established and return was ordered.

The father sought the summary return of his eight-year-old son to the family’s home state under the Hague Convention and Brussels IIR. The mother had brought the child and his older sibling to England after the parents’ relationship ended. The mother alleged that the father had consented to the relocation or subsequently acquiesced in the child remaining in England.

She also relied on Article 13B, arguing that the child would face grave psychological harm or an intolerable situation if returned because his older sibling was likely to remain in England. The court therefore determined whether consent or acquiescence had been established and whether the Article 13B exception applied.

1. Consent. Consent to removal must be clear and unequivocal. It may be inferred from circumstances, but the burden rests on the person asserting it. The inquiry is fact-specific and must reflect the realities of family life rather than contractual principles. Discussions about relocating as a family, without agreement about the destination, timing and participants, did not amount to consent to the mother leaving with the child alone.
2. Acquiescence. Acquiescence concerns the wronged parent’s subjective state of mind. It may be inferred from outward conduct, but only where words or actions clearly and unequivocally show that the parent is not asserting, or will not assert, the right to summary return. The father’s messages, reconciliation proposals and proposed arrangements for joining the family in England were inconsistent with acquiescence. His complaints to the police and preparation of Hague Convention proceedings reinforced that conclusion.
3. Article 13B. The burden was on the mother and the standard was the ordinary balance of probabilities. The risk had to be grave, with the seriousness required depending on the nature of the alleged harm. The court had to consider protective measures and the Convention assumption that return serves the child’s best interests. Intolerability meant a situation which the particular child in the particular circumstances should not be expected to tolerate.
4. Sibling separation can, in an appropriate case, constitute grave psychological harm or intolerability. Here, however, the evidence showed that the child could cope with either outcome. The likely sadness caused by separation did not meet the Article 13B threshold. Any interference with the siblings’ Article 8 rights was lawful, pursued a legitimate aim and proportionate, having regard also to the child’s and father’s family life.
5. The consent, acquiescence and Article 13B arguments all failed. The child was ordered to return to his country of habitual residence, where the courts could determine future living arrangements and parental responsibility.