CA v KA

Under Article 13 of the 1980 Hague Convention, consent before retention and subsequent acquiescence require the same quality of actual agreement. The issue is the wronged parent's subjective state of mind and whether that parent actually consented to the child's continued presence in the jurisdiction.

Proof of acquiescence opens a discretionary, evaluative jurisdiction; it does not create an absolute defence. In exercising that jurisdiction, the court must respect the procedural function of the 1980 Convention and the primacy of the court in the child's state of habitual residence. Where substantive welfare proceedings should be brought there, an immediate return may be precipitate.

The father sought the summary return to Germany of his young daughter, who had travelled there with the mother for a holiday but was retained in England. Germany was accepted to be the child's state of habitual residence. The mother's remaining defences were acquiescence under Article 13 and risk of harm.

The parties had reached a substantive agreement after a telephone discussion. The father then notified the German Central Authority that he withdrew his Hague application and that the parents had agreed arrangements for the child's care and contact. The central issues were whether this amounted to acquiescence and, if so, whether the court should nevertheless order the child's return.

1. Acquiescence. The expressions consent and subsequent acquiescence in Article 13 refer to agreements made before and after the relevant event. They require no different standard of agreement. Applying Re H (Minors) (Abduction: Acquiescence) [1998] AC 72, the court asked whether the father had actually consented to the child's continued presence in England, having regard to his subjective state of mind.
2. The telephone discussion, the father's notification to the German Central Authority that he withdrew his application, and the draft parenting agreement demonstrated a substantive agreement. A family agreement may be substantive even though peripheral matters remain unresolved and it is not contractually complete. The principle in Xydhias v Xydhias [1999] 1 FLR 683 was applied. The father had acquiesced within Article 13.
3. Discretion and jurisdiction. Acquiescence did not establish an absolute defence. It opened a discretionary power, properly understood as a value judgment, whether the child should nevertheless be returned. The 1980 Hague Convention has a procedural function. It holds the position between the parents until the court of the child's habitual residence determines substantive welfare issues.
4. Article 7.3 of the 1996 Hague Convention, considered in Re J [2016] AC 1291, reinforced the limited role of the requested-state court. In the circumstances, Germany retained primary jurisdiction and it was precipitate for this court to decide whether the child should be returned. The parents' failure to commence substantive proceedings in Germany did not justify this court taking over that decision.
5. The court therefore declined to exercise its discretion to order return. The application was dismissed. The judge added that, even if a welfare inquiry had been required, uprooting the child and exposing her to the risk of repeated movement would not have been in her interests.