Re B (A Child) (Consent; Acquiescence; Intolerability)

In an application under the 1980 Hague Convention, consent requires clear and unequivocal consent before removal. Acquiescence concerns the left-behind parent’s actual subjective intention and is a question of fact. Interim arrangements focused on the child’s welfare, including attempts to maintain contact, do not necessarily establish acquiescence.

For Article 13(b), the court must assess the child’s concrete future situation on return, assume disputed allegations at their highest where appropriate, and then consider effective protective measures. The availability of protection through the courts and authorities of the requesting state may defeat an intolerability defence. Where no exception is established, prompt return is required.

The father sought the summary return of his six-year-old son, B, to the Netherlands under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention. B had been habitually resident in the Netherlands and was taken to England in August 2022. The mother maintained that the father had consented to B living in England and had subsequently acquiesced in his retention.

She also relied on Article 13(b), contending that B’s return with her would be intolerable because of alleged domestic abuse, housing difficulties and financial insecurity. The court considered consent, acquiescence, intolerability, habitual residence and the exercise of custody rights.

1. Consent. The mother bore the burden of proving, on the balance of probabilities, that the father had clearly and unequivocally consented before removal to B residing in England. The evidence, including the father’s contemporaneous communications and the parties’ plans for B to attend school in the Netherlands, did not establish such consent.
2. Acquiescence. Consent and acquiescence were alternative exceptions. Applying Re H, acquiescence required an assessment of the father’s actual subjective intention. The father’s communications in August and September 2022 showed opposition to B remaining in England. His limited outward steps thereafter, efforts to preserve contact, attempts at mediation and child-focused arrangements did not demonstrate that he had gone along with the retention. The court should be slow to treat sensible interim arrangements as acquiescence.
3. Article 13(b). The court considered the mother’s allegations at their highest without making findings of fact. There was a potential risk that the mother’s return and continuing communication with the father could place B in an intolerable situation. However, the Dutch courts, administrative authorities and social services were capable of protecting B. The father’s undertakings, including non-molestation, financial support, payment of return costs and assistance with accommodation, provided sufficient protection pending determination of B’s long-term welfare.
4. Habitual residence and wrongful retention. B was habitually resident in the Netherlands when removed and retained. The father was exercising custody rights under the recent Dutch order. The later question whether B had become habitually resident in England was not determinative, and in any event his presence remained temporary.
5. The Article 13 exceptions were dismissed and a return order was made. Permission to appeal was refused. A stay was granted until the Court of Appeal could determine the proposed permission application, conditional on timely filing of the appeal documents.

This was a first-instance decision of the High Court, Family Division. Permission to appeal was refused by the deputy judge. A conditional stay of the return order was granted pending consideration by the Court of Appeal.