H v E

In applications under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, acquiescence is a question of fact assessed from the parties’ words and conduct viewed as a whole. Clear and unambiguous communications, followed by reliance on them, may establish acquiescence even where the original retention was wrongful.

For Article 13(b), the court must assess whether the alleged circumstances, if established, create a grave risk of harm or an intolerable situation, and then consider whether effective protective measures sufficiently manage that risk. If a defence is established, the court retains a discretion, but the welfare consequences of exposing children to serious domestic abuse may outweigh the Convention’s strong policy of prompt return.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the return of two children from England to Sweden. The mother accepted that the children were habitually resident in Sweden and had been wrongfully retained, but relied on acquiescence under Article 13(a) and grave risk of harm under Article 13(b).

The mother relied on messages in which the father appeared to agree that the children would live in the United Kingdom and discussed notifying their schools and arranging contact. She also alleged serious domestic abuse and argued that the protective measures offered by the father were inadequate. The central issues were whether either defence was established and, if so, how the court should exercise its discretion.

1. Acquiescence. The father’s messages, considered in their full context, were clear and unambiguous. He knew that the retention was wrongful, agreed that the children would remain living in England, volunteered to inform their schools, proposed an effective move date, and then discussed contact. The mother relied on those communications by registering the children with schools and a GP. The later messages preceding the proceedings were separate and did not continue an existing negotiation. Article 13(a) was therefore established.
2. Grave risk. The mother discharged the burden under Article 13(b). The allegations of domestic abuse were serious and longstanding. The refuge history, the father’s evidence about arguments, the dated photographs of serious bruising, and the children’s accounts provided support for the allegations. If returned, the children would face physical and psychological harm or an intolerable situation through the father’s behaviour and its effect on the mother’s ability to care for them.
3. Protective measures. The father’s proposed undertakings, including housing, financial support and restrictions on contact, were extensive but insufficient. The court was not satisfied that he would comply with them, having regard to his threatening October messages, alleged conduct during contact, criminal history and lack of insight. The proposed accommodation also demonstrated inadequate appreciation of the domestic-abuse allegations.
4. Discretion. The Convention’s policy considerations were given substantial weight, as the removal was deliberate and deceitful. Nevertheless, the children’s exposure to serious domestic abuse, their settled circumstances in England, their care by the mother and the likely separation from their older half-sibling were more compelling. The father’s application for return was refused.