B (A Child) (Abduction: Acquiescence: Article 13(b)), Re

In a Hague Convention return application, acquiescence under Article 13(a) depends principally on the left-behind parent’s actual state of mind, assessed from all the circumstances. Contemporaneous words and conduct may outweigh later assertions. A parent may acquiesce by passively going along with the child’s retention; a single formal agreement is unnecessary.

The Article 13(b) exception requires a grave risk of physical or psychological harm or an intolerable situation. The court may assess the asserted risk at its highest in summary proceedings and consider whether effective protective measures address it. Where acquiescence is established, the court retains a broad discretion whether to order return. Convention objectives must be balanced against the child’s welfare, the consequences of delay and the child’s settled circumstances.

The father applied under the 1980 Hague Convention for the return of his three-year-old son to New Zealand. The mother had brought the child to England with the father’s consent for a limited visit in September 2024 but did not return with him. The father later delayed commencing Convention proceedings while the parties discussed their relationship, the father’s possible move to England and the mother’s establishment of a new life with the child.

The mother disputed wrongful retention and relied alternatively on habitual residence, acquiescence under Article 13(a), and grave risk under Article 13(b). The central issues were whether there had been a wrongful retention, whether the father had acquiesced, whether Article 13(b) was made out, and whether the court should nevertheless exercise its discretion to order return.

1. Wrongful retention. The mother’s indication, by late September 2024, that she would not return with B within the previously agreed timeframe amounted to a repudiatory retention. A wrongful retention may occur before the agreed return date: Re C (Children) [2018] UKSC 8. The Convention therefore applied, and the wrongful retention occurred no later than 28 September 2024.
2. Habitual residence. At the date of retention B remained habitually resident in New Zealand. The inquiry is fact-sensitive and global. It considers the child’s circumstances, stability, integration, family and social environment, parental intentions and connections with each country. B had spent only a few weeks in England on an intended short holiday and lacked the stability and integration required to displace his established connection with New Zealand.
3. Acquiescence. The governing question was the father’s actual subjective state of mind, with the burden on the mother. The court gave greater weight to contemporaneous conduct than to bare assertions. The father knew that legal remedies were available, yet for about five months did not pursue them and instead supported or did not oppose the mother’s job search, housing arrangements and B’s pre-school enrolment. The messages showed a clear assumption that the mother and B would remain in England. Taken cumulatively, this established acquiescence on the balance of probabilities. It also satisfied the exceptional objective route because the father’s conduct led the mother to believe that he would not seek summary return.
4. Article 13(b). The court did not conduct a fact-finding investigation into disputed domestic-abuse allegations. Even assuming the risk at its highest, the proposed separate accommodation, undertakings and the assistance available from New Zealand authorities would ameliorate it. The financial and practical difficulties of return, although serious and uncomfortable, did not amount to an intolerable situation, subject to air-fare payment and accommodation for four months.
5. Discretion and outcome. The Article 13(a) exception made return discretionary. Convention objectives favoured return, but the father’s five-month delay substantially reduced their weight. B had spent nearly one third of his life in England, had formed strong roots and had achieved important stability. Balancing welfare, contact difficulties, the circumstances of return and Convention policy, the court refused return and dismissed the application.

First-instance determination in the High Court (Family Division). The application for summary return under the 1980 Hague Convention was dismissed.