K (A child : Hague Child Abduction Convention)

In Hague Convention proceedings, a child’s expressed wish to remain in the requested State is insufficient for the Article 13 child-objections exception unless it amounts to a genuine objection to return and the child has the requisite age and maturity. Crossing that threshold does not determine the outcome; the court retains an overall discretion.

Acquiescence under Article 13(a) depends primarily on the wronged parent’s actual state of mind. Conditional statements made during attempts to secure contact or negotiate arrangements will not ordinarily amount to clear and unequivocal consent. A concluded agreement is required where the alleged acquiescence arises from such negotiations.

The mother applied under the Hague Child Abduction Convention for the summary return to Turkey of her 11-year-old son, K. The father accepted that K had been habitually resident in Turkey and that his retention in England was wrongful.

The father relied on two defences: that the mother had acquiesced in K’s retention and that K objected to returning to Turkey, having attained an age and degree of maturity at which his views should be taken into account. The consent defence was abandoned during the hearing.

The central questions were whether K’s views amounted to an objection within Article 13 and whether the mother’s communications and conduct established acquiescence.

1. Child objections. The court accepted the principles distilled from Re M & Ors (Children) (Abduction: Child Objections) [2015] EWCA Civ 26. The court must first decide whether the child objects to return and has sufficient age and maturity for his or her views to be considered. A preference to remain with one parent, or objections to particular circumstances or persons, is not necessarily an objection to returning to the country of habitual residence.
2. K was sufficiently mature for his views to be considered, but his expressed reasons were mild and principally concerned with school, employment opportunities, family circumstances and his mother’s working hours. They amounted to a preference or wish to remain in England, rather than an objection to return to Turkey. The Article 13 child-objections defence therefore failed.
3. Acquiescence. Applying Re H (Minors) (Abduction: Acquiescence) [1998] AC 72 and P v P [1998] 1 FLR 630, the relevant question was whether the mother had actually agreed to K remaining in England. Her email and later WhatsApp message had to be read in context. They were part of attempts to obtain contact with K and contemplated arrangements involving K’s return to Turkey. They did not constitute clear and unequivocal consent or a concluded agreement.
4. The mother’s continued efforts to secure K’s return, including divorce proceedings seeking his return, further demonstrated that she had not acquiesced. Her lack of knowledge of the Convention and her rights was also significant when assessing her conduct.
5. As neither defence was established, Article 12 required an order for K’s prompt return to Turkey. The parties were to discuss how the return should be effected.