FD25P00086 - [2025] EWHC 2190 (Fam)

In Re H (Minors) (Abduction: Acquiescence) [1998] AC 72, 90D – G Lord Browne-Wilkinson stated as follows:

“Summary

To bring these strands together, in my view the applicable principles are as follows. (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 F.L.R. 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.” (emphasis added)

In my judgment this defence is not made out. The father is clear that he did not know where T had been taken to, and when he did find out he made efforts to return him. The mother says that the father’s lawyers were sent two letters from the mother’s lawyers, one before she left which she was unable to produce, and a further letter dated 23 October 2022 which stated as follows:

“We wish to inform you that our client has informed us that she and the child have relocated to South Africa. She has not communicated her new address to us.

Please advise your client accordingly so that he does not try to collect the child from [a specified location].”

There are two copies of the letter in the bundle, one unmarked, and the other appearing to bear a stamp from the father’s lawyers with a date of 25 October 2022; that version of the letter has been copied to the clerk of the court. The mother said both copies had been sent to her by her lawyers. However, the father’s lawyers have sent a letter dated 27 June 2025 stating that “there was no communication which was made to us to the effect that the minor child was moving from Zimbabwe. Any purported communication to that effect is fraudulent…”

Accordingly, I find that the father’s lawyers did not receive a letter dated 22 October 2022 from the mother’s lawyers stating that the mother and T had moved to Zimbabwe.

The father’s version of events is that he first knew about T leaving when the headmaster of his school telephoned him on 24 October 2022 and at that point he did not know where the mother and T had gone. He notified the police, asked the mother’s parents, and searched on various social medial platforms, to no avail. It was only after the father had begged the mother’s parents for news of T that the mother sent him a voice note with T, from which he detected a UK accent and surmised that he must be in the United Kingdom. He then saw a post on social media showing one of the mother’s sisters as living in England. In November 2024 he made an enquiry of Waltham Forest Children’s Services. He then visited England on 18 February 2025, and having failed to get T back to Zimbabwe, commenced these proceedings on 14 April 2025.

The father did say that on the few occasions he was telephoned by the mother, it was from a South African phone, so he assumed that she and T were in South Africa. It is not clear when those telephone calls took place. He made no effort to contact the South African authorities to trace them both. That might have formed the basis for a persuasive argument in favour of acquiescence, depending on the total duration that the father had knowledge of their location. However, the father maintains that he continued to seek out the mother and T in Zimbabwe, and I do not infer that the father’s subjective intentions were that he was not seeking to assert a right to T’s summary return.

In my judgement, it therefore cannot be inferred that the father’s subjective state of mind is that he has acquiesced to a wrongful removal of T. It is not plausible to find that 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.

I therefore find that the acquiescence defence fails.