R v R

For the purposes of article 13 of the Hague Convention, acquiescence depends primarily on the wronged parent’s actual subjective intention. The abducting parent bears the burden of proving that intention on all the evidence, with particular weight ordinarily given to contemporaneous words and conduct. A conditional agreement to a child remaining in the requested state, made while negotiations continue, does not by itself establish acquiescence. The exceptional objective category applies only where words and conduct clearly and unequivocally show, and lead the other parent to believe, that summary return will not be sought and are inconsistent with return. Delay caused by genuine negotiations is not necessarily indicative of acquiescence.

The father applied under the Hague Convention for the summary return to Canada of two children whom the mother had removed from Canada to England. The mother conceded habitual residence in Canada, wrongful removal, the father’s custody rights and the absence of consent. She initially relied on objections and harm but pursued only acquiescence. The issue was whether the father’s participation in English Children Act proceedings, conditional agreement to the children remaining in England and Wales, negotiations concerning contact, delay and later Canadian proceedings established acquiescence, either as a matter of fact or within the exceptional objective category.

1. Return ordered. The mother failed to establish acquiescence, and the children were ordered to return forthwith to Canada, their state of habitual residence, so that the Canadian courts could determine their welfare.
2. Applying Re H (Minors) (Abduction: Acquiescence) [1998] AC 72, acquiescence depended on the father’s subjective intention, determined as a question of fact. The burden rested on the mother, and contemporaneous words and conduct were significant.
3. The father’s statements and the recitals in the English order were conditional on agreement about contact. They were not clear and unambiguous evidence that he intended the children to remain in England and Wales. His Canadian custody proceedings and later Hague application reinforced that conclusion.
4. The exceptional objective category was not established. The father’s conduct did not clearly and unequivocally lead the mother to believe that he would not seek summary return. The mother’s own evidence showed that she understood his position to be contingent on agreement about contact.
5. The delay occurred during negotiations and was neither unexplained nor indicative of acquiescence. The court also gave guidance that jurisdiction must be addressed at the outset of international Children Act proceedings, Form C100 section 6 must be completed accurately, and any provisional without-notice jurisdictional decision should be identified as provisional.