OC v CD

Under the 1980 Hague Convention, the prompt return of a wrongfully retained child is mandatory unless an Article 13 defence is established.

For Article 13(b), the court assesses the alleged risk at its highest on the available evidence. If that risk is grave, protective measures must then be considered. Ordinary differences in living conditions are insufficient. A child’s objection involves a low gateway threshold, but it gives rise only to a discretion in which welfare considerations and the Convention’s return objectives remain important. Acquiescence depends on the wronged parent’s actual state of mind. It is ordinarily assessed from contemporaneous words and conduct, with the burden on the abducting parent. Clear and unequivocal conduct inconsistent with seeking summary return is required.

The father sought the summary return of his three children from Wales to Australia. The children had been habitually resident in Australia, and the mother accepted that she had wrongfully retained them after a holiday.

The mother relied on three Article 13 defences: grave risk of harm or an intolerable situation under Article 13(b), objections by the two older children, and the father’s alleged acquiescence under Article 13(a). The court heard evidence from both parents and a Cafcass officer concerning the children’s views and the circumstances of the retention.

1. Return principle. The children were habitually resident in Australia, the father had been exercising rights of custody, and the retention was wrongful. Under Article 12 of the 1980 Hague Convention, return was therefore mandatory unless a defence under Article 13 was established.
2. Article 13(b). The mother’s case did not establish a grave risk that return would expose the children to physical or psychological harm or place them in an intolerable situation. The court applied the approach in In re E and Re S (A Child): the alleged risk is considered at its highest, and protective measures are considered if the threshold is met. The mother confirmed that she would return with the children, the father did not pose a risk of harm, and he offered financial and practical undertakings. Less emotional support, or more modest living arrangements, was insufficient.
3. Children’s objections. The two older children crossed the low gateway threshold because, narrowly, they voiced objections to returning. The court nevertheless retained a broad discretion. Their views were materially influenced by their loyalty to their mother, the parental separation, their exposure to adult concerns, and the period spent in Wales. The objections were not regarded as sufficiently authentic to justify refusing return. The discretion was exercised in the round, bearing in mind welfare considerations and the Convention’s emphasis on prompt return.
4. Acquiescence. The mother bore the burden of proving that the father had acquiesced after the retention. Pre-retention discussions could not themselves amount to acquiescence. Applying Re H (Abduction: Acquiescence), the court assessed the father’s actual state of mind, giving particular weight to contemporaneous communications. His messages showed distress, uncertainty and a belief that he was powerless, rather than clear and unequivocal conduct wholly inconsistent with seeking return. The circumstances were comparable to the father’s position before proper advice in Re S (Abduction: Acquiescence).
5. The Article 13 defences failed. The court directed the children’s return to Australia and invited counsel to draw the order addressing practical and consequential arrangements.