KJC v GRC (Hague Convention)

In proceedings under the 1980 Hague Convention, the court’s task is procedural: to secure the prompt return of a wrongfully removed child so that welfare decisions can ordinarily be made in the state of habitual residence.

Acquiescence depends primarily on the wronged parent’s actual state of mind. Negotiations or provisional arrangements about contact and residence do not establish acquiescence unless they amount to a clear and concluded agreement, or clearly and unequivocally lead the other parent to believe that return will not be sought.

An Article 13(b) defence requires a grave future risk of harm or an intolerable situation. The court must assess the evidence concretely and consider protective measures. Immigration difficulties do not automatically establish the defence. A return order was made, subject to protective measures and a two-month implementation period.

The father applied under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for the summary return of his two young daughters from England to the United States. The children had lived all their lives in the United States and were habitually resident there. The father had custody rights under Californian law.

The mother relied on Article 13(a) acquiescence and Article 13(b) grave risk. She alleged domestic abuse and argued that uncertainty over her United States immigration status might prevent her accompanying the children. The central issues were whether either defence was established and, if so, whether the court should nevertheless exercise its discretion to order return.

1. Return order. The children were ordered to return to the United States by no later than 2 January 2020, subject to protective measures and liberty to apply as to implementation.
2. Acquiescence. Applying In re H [1998] 1 AC 72, the question was the father’s actual state of mind, assessed primarily by contemporaneous words and conduct. Acquiescence could arise from conduct which clearly and unequivocally led the mother to believe that return would not be sought, but the evidence did not meet that standard. The parties’ discussions were continuing attempts to resolve residence, contact and welfare matters. The father had not formed a settled agreement to permanent retention and had expressly reserved his Hague Convention rights.
3. Article 13(b). The mother bore the burden on the balance of probabilities. The risk had to be grave and the prospective situation intolerable for these particular children. The alleged domestic abuse did not establish the defence because the children would not ordinarily live with both parents, the evidence did not demonstrate direct danger to them, and protective measures could be provided.
4. The immigration issue required concrete assessment. A temporary inability to enter the United States might create an intolerable situation if the children were returned without their primary carer. However, the evidence showed that the mother could enter under the ESTA scheme after a possible period of up to two months. The court therefore ordered return within that period, avoiding separation.
5. Protective measures included payment of travel and living costs, non-contact at the airport, a non-molestation undertaking, restrictions on drug use near the children, assistance with immigration applications and provision of a vehicle. The court was entitled to assume that Californian authorities could provide further safeguards.
6. Had a Convention exception been established, the discretion to return would have remained at large. No return was ordered under the inherent jurisdiction because that submission was withdrawn following Re NY [2019] UKSC 49.