CH v GLS

In Hague Convention proceedings, acquiescence is principally a question of fact concerning the wronged parent’s subjective state of mind. Negotiations for a voluntary return do not ordinarily establish acquiescence, but the court may consider the parties’ communications and conduct. In exceptional cases, a parent may be unable to rely on a secretly retained intention to seek summary return where their unequivocal conduct led the other parent reasonably to believe that the child could remain.

Under Article 13(b), the court must assess whether the alleged circumstances, if established at their highest on the evidence, create a grave risk of physical or psychological harm or an intolerable situation. It must then consider effective protective measures. The discretion whether to order return is at large and requires Convention policy to be balanced against the child’s circumstances.

The father sought the summary return of the parties’ four-year-old daughter to Spain under the Hague Convention and Brussels II Revised. The child had lived in Spain and was removed to England by the mother on 21 May 2019.

The mother relied on acquiescence and grave risk under Article 13(b). She alleged serious domestic violence, was heavily pregnant, had limited Spanish and little support in Spain. The father denied the allegations and maintained that he had always intended the child to return to Spain. The issues were whether his conduct amounted to acquiescence and whether return would expose the child to a grave risk or intolerable situation.

1. The application for summary return was refused. The court accepted that the child was habitually resident in Spain and had been wrongfully removed, but the statutory and Convention defences were established.

2. Acquiescence required assessment of the father’s actual subjective state of mind. Contemporaneous written communications were generally better evidence than later oral recollection. Negotiations and attempts to reach agreement should not be treated as acquiescence automatically, since the Convention encourages voluntary solutions. Their weight remained a matter for the judge on the particular facts.

3. The father’s texts and conduct indicated that he accepted that the mother and child would live in England, with contact in England and Spain. He never said that the child should return to Spain to live, despite detailed negotiations. Although the court did not find unequivocal acquiescence under the primary test, the exceptional principle in Re H (Abduction: Acquiescence) [1997] 1 FLR 872 applied. The father’s conduct led the mother reasonably to believe that he had accepted the child remaining in England, and he could not rely on a concealed contrary intention.

4. For Article 13(b), “grave” retained its ordinary force. The court had to evaluate the allegations and the degree of risk in the evidence, while respecting the summary nature of the procedure. Where allegations of domestic abuse, if true, would create grave risk, the court had to consider how the child could be protected, including through undertakings, orders and the protective capacity of the requesting state.

5. Return with the mother would expose the child to a grave risk of psychological harm and an intolerable situation. The relevant circumstances included the mother’s advanced pregnancy, the need to change antenatal care, limited Spanish, isolation, lack of meaningful support in Spain, credible allegations of serious domestic violence and the inevitable continuing contact with the father. Return without the mother was impermissible because it would separate a four-year-old child from her primary carer.

6. The court considered protective measures and the Spanish authorities’ ability to enforce them, but concluded that they did not remove the grave risk on these facts. Any discretion under the Convention was at large. Convention policy, comity and deterrence were important, but did not require return where the resulting risk to the child was unacceptable.