H v H (Child Abduction: Acquiescence): CA 14 Aug 1996

The parents were orthodox Jews. The mother brought the children to England, and resisted an order for their return, saying the father had delayed in bringing the proceedings.
Held: A parent must act quickly in cases of child abduction in order to avoid a finding that he or she has been acquiescent in the abduction. ‘The phrase ‘subsequently acquiesced in the removal or retention’ has been elaborated in England by case law. The governing authorities are In re A. (Minors) (Abduction: Custody Rights) [1992] Fam. 106, In re A. Z. (A Minor) (Abduction: Acquiescence) [1993] 1 F.L.R. 682 and In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819. Their general effect, to summarise it shortly, is as follows. In order to establish acquiescence by the aggrieved parent, the abducting parent must be able to point to some conduct on the part of the aggrieved parent which is inconsistent with the summary return of the child to the place of habitual residence. ‘Summary return’ means in that context an immediate or peremptory return, as distinct from an eventual return following the more detailed investigation and deliberation involved in a settlement of the children’s future achieved through a full court hearing on the merits or through negotiation. Such conduct may be active, taking the form of some step by the aggrieved parent which is demonstrably inconsistent with insistence on his or her part upon a summary return; or it may be inactive, in the sense that time is allowed by the aggrieved parent to pass by without any words or actions on his or her part referable to insistence upon summary return. Where the conduct relied on is active, little if any weight is accorded to the subjective motives or reasons of the party so acting. Where the relevant conduct is inactive, some limited enquiry into the state of mind of the aggrieved parent and the subjective reasons for inaction may be appropriate.’ The father had acted entirely properly within the tenets of his faith in not taking Convention proceedings until authorised by his Beth Din, but: ‘. . . That is beside the point, however, when it comes to a consideration of the objective inferences to be drawn from the fact that he took active steps towards a settlement or adjudication of the matrimonial differences through the medium of the Beth Din, and persisted in those steps for many months, without making any overt statement that he was insisting upon the summary (as opposed to the eventual) return of the children.’


Stuart-Smith, Waite and Otton L.JJ


Gazette 25-Sep-1996, Times 14-Aug-1996


Hague Convention on the Civil Aspects of International Child Abduction 1980 813


England and Wales


CitedRe A (Minors) (Abduction: Custody Rights) No 2 CA 29-Jul-1992
The mother had wrongfully removed the children from Australia to this country. The father wrote to the mother saying that ‘I think you know that what you have done is illegal, but I’m not going to fight it’ and generally giving the impression that . .
CitedIn re A Z (A Minor) (Abduction: Acquiescence) 1993
. .
CitedIn re S (Minors) (Abduction: Acquiescence) 1994
For the purposes of Article 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind of the parent: ‘the court is primarily concerned, not with the . .

Cited by:

Appeal fromRe H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Lists of cited by and citing cases may be incomplete.


Updated: 28 April 2022; Ref: scu.81104