No: FD24P00469 - [2025] EWHC 799 (Fam)

Counsel are agreed that the relevant law on acquiescence can be found in the speech of Lord Browne-Wilkinson in the case of Re H (Minors)(Abduction: Acquiescence) [1998] AC 72 at 90.

“(1)

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. As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819, 838:

“the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact.”

(2)

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.

(3)

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.

(4)

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.”

Thus, generally, the abducting parent must show that the left-behind parent subjectively acquiesced in the abduction. However, Mr Evans also places weight on “the exception” identified by Lord Browne-Wilkinson in the final point of his summary, which provides that the defence may still be made out if the words and actions of the left-behind parent clearly and unequivocally show, and have led the abducting parent to believe, that the other parent is not asserting or is not going to assert his Convention rights. That being so, I consider it important to review what Lord Browne-Wilkinson said about this exception in a little more detail. The following passage can be found at page 89-90 of his judgment:

“My Lords, in my judgment these exceptional circumstances can only arise where the words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child: they must be wholly inconsistent with a request for the summary return of the child. Such clear and unequivocal conduct is not normally to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children. Still less is it to be found in a request for access showing the wronged parent's desire to preserve contact with the child, in negotiations for the voluntary return of the child, or in the parent pursuing the dictates of his religious beliefs.

…

The important factor to emphasise is that the wronged parent who has in fact never acquiesced is not to lose his right to the summary return of his children except by words or actions which unequivocally demonstrate that he was not insisting on the summary return of the child.”

The factors that are said to have given rise to acquiescence on behalf of the father in this case can be briefly stated and largely arise from a somewhat heated e-mail exchange between the parents on 14 February 2024, that is to say a couple of days after the arrival of the mother and child in the UK, and a few hours after the 5 year DVPO was made by the Australian State court against the father.

The father did not reply to these emails. However, a few days later, he posted a message on a Family album app that he had access to which accused the mother of taking D without his knowledge or even having a chance to say goodbye. This led to a further brief round of communication between the parents which I do not need to set out, but which demonstrate an atmosphere of considerable hostility between the parents. Thereafter the father did not communicate with the mother or D until May 2024 when he discovered that the mother had returned to Australia. However, it was not until 4 June 2024 that the mother informed the father that it was her intention that her move to the UK should be a permanent one.

For the mother, Mr Evans argues that the father was well aware, prior to the mother and child’s travel, as to his rights under the Convention as the mother had already advised him of this. This, coupled with the failure of the father to take steps to secure the child’s return, the email exchange of the 14 February in which the father appeared to want to cut off all contact until 2029 and the absence of any communication from him for nearly four months thereafter demonstrates clearly and unequivocally, Mr Evans argues, that the father was not asserting his right to the child’s summary return to Australia and the mother was led to believe this was the case.

I do not consider that the facts when properly analysed can support this argument. The email exchange of 14 February took place in the context of the mother’s assertion that she and the child had travelled to the UK for a limited trip of 4 to six months. Such a trip had been in both parents’ contemplation at one stage (although the father had subsequently withdrawn his consent). Nonetheless, it seems to me that the email exchange has to be seen in the light of the mother’s own unequivocal representation that this was to be a trip of a limited duration and the reassurance that she provided to the father that she and D would be returning to Australia.

Second, the exchange took place a matter of hours after the Australian State court had made the DVPO and it is clear that both parties, but in particular the father, were in an emotional state. Thus when the father says “We can speak again in 2029”, I do not consider that this can sensibly be treated as a clear and unequivocal statement that he did not intend to assert his Convention right to seek D’s return to Australia. It is clearly a remark written in the heat of the moment in the immediate aftermath of a court hearing.

Thereafter Mr Evans relies upon the father’s silence and inaction in order to establish either that the father subjectively acquiesced or that Lord Browne-Wilkinson’s “exception” is made out. I am not satisfied that this is sufficient for me to find that there was any subjective acquiescence on the part of the father.

Moreover, as the passage from page 89 of Lord Browne-Wilkinson’s speech in Re H makes clear, the words and actions of the wronged parent “must be wholly inconsistent with a request for the summary return of the child.” Here I am concerned not with words and actions but with silence and inaction, and moreover silence and inaction in the context of a clear representation from the mother that she and the child would be returning to Australia within a few months. The events of this case are a long way from the examples given by Lord Browne-Wilkinson in Re H and I do not consider that any aspect of the father’s behaviour can be considered to be wholly inconsistent with him requesting D’s summary return.

Accordingly, I find that the mother’s defence under Art 13(a) fails.