DJO v SEO

In a Hague Convention summary-return application, acquiescence depends on the wronged parent’s actual state of mind. The abducting parent bears the burden of proving it. The court assesses the evidence as a whole, giving appropriate weight to contemporaneous words and conduct rather than isolated communications or later assertions. Acquiescence is established only where words or conduct clearly and unequivocally show acceptance of the child’s retention and lead the other parent to believe that summary return will not be pursued.

For Article 13(b), the court may assume allegations of harm are correct and focus on whether adequate protective measures can address the resulting risk or intolerable situation.

The applicant father sought the summary return of his two-year-old son to California under the 1980 Hague Convention, following the child’s removal from California to England by the respondent mother. The father held rights of custody and the child had been habitually resident in California.

The mother relied on the Article 13(a) defence of acquiescence and the Article 13(b) defence of grave risk of physical or psychological harm or an intolerable situation. The court considered written communications, limited oral evidence, the mother’s pregnancy and proposed protective arrangements. The central questions were whether the father had acquiesced and whether adequate arrangements could secure the child’s protection on return.

1. Return order. The application succeeded. The child was to be returned to California under Article 12, not later than three weeks after the birth of the mother’s baby.
2. Acquiescence. Applying H v H (Abduction: Acquiescence) [1997] 1 FLR 872; [1998] AC 72 HL, the issue was the father’s actual subjective state of mind. The burden rested on the mother. His communications and conduct had to be assessed in their full context, rather than in isolation. They were consistent with attempts to reconcile and secure the family’s return to America, or to live temporarily in England while resolving difficulties. They did not clearly and unequivocally show acceptance of the child remaining in England. The Article 13(a) defence therefore failed.
3. Evidence and case management. Hague applications are summary proceedings and are ordinarily determined on written evidence, subject to exceptional oral evidence on a narrow issue: Re K (Abduction: Case Management) [2011] 1 FLR 1268. Here, the written communications gave a more reliable account than the parents’ oral evidence, consistently with Re WA (A child)(Abduction)(Consent; Acquiescence; Grave Risk of Harm or Intolerability) [2015] EWHC 3410 (Fam).
4. Grave risk and intolerability. Following Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, the court could assume the mother’s allegations were correct and assess whether protective measures would sufficiently address the assumed risk. The ordinary balance of probabilities applied and the burden rested on the person opposing return. “Intolerable” required consideration of what the particular child in the particular circumstances should be expected to tolerate, adopting the formulation in Re D (Abduction: Rights of Custody) [2007] 1FLR 961.
5. The mother accepted that the agreed protective measures would provide sufficient protection if implemented. The court was satisfied that adequate arrangements could be made, including accommodation, financial provision, legal funding, medical cover, restrictions on the father’s contact and protective orders in California. The Article 13(b) defence therefore failed.