LAW REPORT: 15 April 1997: Acquiescence a matter of parent's subjective intention

Re H and Others (Minors); House of Lords (Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Hoffman, Lord Clyde) 10 April 1997

The question whether a wronged parent had acquiesced in the wrongful removal of children for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction 1990 was one of subjective intention, and was a pure question of fact.

The House of Lords gave reasons for having allowed an appeal by the father against the decision of the Court of Appeal allowing the mother's appeal against the decision to return her children to Israel under the Convention.

The father and mother were both strict Orthodox Jews. The mother had taken their children from their home in Israel and had brought them to England without the consent of the father. She had begun proceedings in the county court. The father, as required by his religion, had taken no part in the proceedings until authorised to do so by his local Beth Din (a religious court of law), when he immediately invoked the Convention procedures.

Article 12 of the Convention provided for the return of a child who had been wrongfully removed or retained, and Article 13 provided that the requested state was not bound to order the return of such a child where the person opposing its return established that, inter alia, the person having care of the child had consented to or subsequently acquiesced in the removal or retention.

Mark Everall QC and Marcus Scott-Manderson (Reynolds Porter Chamberlain) for the appellant; Judith Parker QC and Lewis Marks (Mishcon De Reya) for the respondent.

Lord Browne-Wilkinson said that the primary question was whether the father, by pursuing his remedies in the Beth Din rather than promptly bringing proceedings for the summary return of the children under Article 12, had acquiesced in the removal of the children. The Court of Appeal had applied a rule of law, namely that in a case of "active" acquiescence, the actual state of the father's mind was irrelevant. The question was whether there was such a rule of law.

The distinction between "active" and "passive" acquiescence had first been drawn in Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106. The test applied by the Court of Appeal in the present case suggested that evidence of the wronged parent's actual intentions were irrelevant or seldom of any weight where there had been positive action of any kind by the wronged parent. The authorities did not support that proposition.

The appeal should not, however, be decided on that narrow ground. The authorities disclosed a variety of approaches to the meaning of "acquiescence" in Article 13 and it was desirable that their Lordships should attempt to state the principles to be adopted.

The first question to consider was whether acquiesence was subjective or objective. It was a concept which occurred in many different contexts in English law and which varied according to that context. Those English law concepts had, however, no direct application to the proper construction of Article 13. An international convention could not be construed differently in different jurisdictions. In his Lordship's judgment, acquiescence was a question of the actual subjective intention of the wronged parent.

Once that was established, it was clear that the question of acquiescence was a pure question of fact to be determined by the trial judge. Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or the voluntary return of the abducted child. Finally, it should always be borne in mind that under Article 13 the burden of proving acquiescence was on the abducting parent.

The only exception was where the words or actions of the wronged parent clearly and unequivocally showed and had led the other parent to believe that he was not asserting or going to assert his right to summary return of the child, and were inconsistent with such return.

Applying that approach to the present case, the judge had found that in fact the father had never acquiesced, and the mother had not shown that the case came within the exception.