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 responded that he had acted only to follow the edicts of the Beth Din.
Held: Acquiescence in abduction is dependant upon the subjective intention of the wronged party.
Lord Browne-Wilkinson said: ‘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.
The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced. ‘ The burden of proving that the plaintiff in Convention proceedings has acquiesced in the wrongful removal of his or her child lies upon the abducting parent.
Lord Browne Wilkinson said: ‘An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all contracting states’ and English concepts and English law rules about the meaning of acquiescence could have no direct relevance to the interpretation of the Convention.
Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Clyde
Times 17-Apr-1997, [1998] AC 72, [1997] 1 FLR 872, [1997] 2 FCR 257, [1997] Fam Law 468, [1997] 2 All ER 225
House of Lords, Bailii
Hague Convention on the Civil Aspects of International Child Abduction, Child Abduction and Custody Act 1985
England and Wales
Citing:
Appeal from – 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 . .
Cited – In Re H (Minors) (Abduction: Custody Rights) HL 1991
The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the . .
Cited – In 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 – Re 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 . .
Cited – In re A Z (A Minor) (Abduction: Acquiescence) 1993
. .
Cited by:
Cited – Cannon v Cannon CA 19-Oct-2004
The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Lists of cited by and citing cases may be incomplete.
Children
Leading Case
Updated: 01 November 2021; Ref: scu.81103