Mother v Father

Under the 1980 Hague Convention, a wrongful retention within one year requires the child’s prompt return unless the respondent establishes a limited exception. Acquiescence depends principally on the wronged parent’s actual state of mind and normally requires clear and unequivocal conduct. A quickly withdrawn position may carry little weight in the return discretion.

The Article 13(b) exception is restrictive. The court must assess the alleged risk on the evidence, consider the future situation on return, and examine whether effective protective measures can address any grave risk. Under Article 13(2), an objection by a sufficiently mature child opens a discretion; it creates no presumption against return. Summary return remains distinct from subsequent welfare adjudication.

The mother applied for the summary return of her 12-year-old son to Spain under the 1980 Hague Convention. The child had moved to Spain with the mother in 2021 following permission from the English Family Court. During an agreed holiday in England in July 2023, the father retained him and accepted that the retention was wrongful and that the child was habitually resident in Spain.

The father relied on acquiescence under Article 13(a), grave risk under Article 13(b), and the child’s objection under Article 13(2). The central issues were whether any exception was established and, if so, whether the court should nevertheless exercise its discretion to order return.

1. Return and Article 13(a). The retention was wrongful and occurred within one year, so Article 12 required summary return unless an exception was established. The mother’s urgent position statement, prepared without legal advice and in response to proceedings concerning the child’s future, amounted neither to real and positive consent nor to clear and unequivocal acquiescence. Applying the principles in Re H (Minors; abduction; acquiescence) [1998] AC 72, the court assessed her actual state of mind and the circumstances in which the words were used. The relevant awareness of rights was also considered by reference to Re A (Minors: Abduction, custody rights) [1992] FLR 106 and Re AZ (A minor: Abduction, acquiescence) [1993] FLR 682. Any acquiescence was withdrawn within days and would have carried little weight.
2. Article 13(b). The court rejected the father’s more extreme account of strangulation after evaluating the evidence rather than taking the allegation at its highest, following Re C (Children; abduction, Article 13(b)) [2018] EWCA Civ 2834. Even assuming a grave risk of physical or psychological harm or an intolerable situation, protective measures could address it. These included a safeguarding referral in Spain, the stepfather leaving the home, no contact between the stepfather and child pending risk assessment, the mother’s cooperation with Spanish enquiries, and transmission of the papers to the Spanish authorities.
3. Article 13(2). The child’s age, maturity and objection satisfied the gateway. Applying Re E (Children; abduction, custody appeal) [2011] UKSC 27, there was no presumption that his views determined the outcome. The discretion remained at large and required consideration of all the circumstances.
4. Exercise of discretion and order. The policy of the Convention, the existing English and Spanish orders, the child’s established life with his mother and half-sibling, and the risk of further deterioration in the mother-child relationship favoured return. Longer-term welfare issues belonged to the Spanish court. The father was ordered to transport the child to Spain by 4 pm on 7 December 2023. The protective undertakings were reinforced by order, recitals and a penal notice, and the mother was directed to seek a mirror order in Spain.