No: FD25P00282 - [2025] EWHC 2144 (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 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.”

Ms Green also identified the proposition (which Ms More O’Ferrall accepted) that once given, acquiescence cannot be withdrawn; Re S (Abduction: Acquiescence) [1998] 2 FLR 115 at 122 (CA). Both counsel took me to the decision of Mostyn J in JM v MR (Abduction: Retention: Acquiescence) [2021] EWHC 315. At [45] to [50] the judge stated:

“[45] Therefore "consented" means, for the purposes of the Convention, active, advance, communicated permission granted by the left-behind parent for the period of care with the other parent. In contrast, according to the OED "to acquiesce" means "to agree, esp. tacitly; to accept something, typically with some reluctance; to agree to do what someone else wants; to comply with, concede". The word carries with it a much greater sense of passivity; of acceptance of a state of affairs by doing nothing; of tacit compliance. In ordinary language it obviously covers active consent ex post; but it also covers passive acceptance by just "going along with" the proposal. This dual meaning is to be found in the leading authority on the defence of acquiescence namely the decision of the House of Lords in In re H (Minors) (Abduction: Acquiescence)[1998] AC 72. In his speech Lord Browne-Wilkinson stated at p.87:

"What then does article 13 mean by "acquiescence?" In my view, article 13 is looking to the subjective state of mind of the wronged parent. Has he in fact consented to the continued presence of the children in the jurisdiction to which they have been abducted?" (my emphasis)

Here Lord Browne-Wilkinson is clearly using acquiescence in its first sense. However, at p.89 he says:

"In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction." (my emphasis)

Here he is using acquiescence in its second sense.

[46] In my judgment, to succeed in a defence of acquiescence, it is not necessary to show more than the second sense of its meaning, namely that the left-behind parent has passively gone along with the removal or retention. This is not to reintroduce the distinction between active and passive acquiescence disapproved in In re H. That distinction had given rise to different legal treatments of the left-behind parent's subjective intentions. That distinction was overturned. Whether the conduct of the left-behind parent was active or passive, his intentions had to be established as a matter of fact.

[47] Lord Browne-Wilkinson identified two separate factual scenarios where the defence might be established. The first, which Lord Browne-Wilkinson described as "the ordinary case", is where the left-behind parent has subjectively consented to, or has gone along with, the continued presence of the children in the place to which they had been taken. Lord Browne-Wilkinson explained that this state of subjective intention is a pure question of fact. In determining that question the court will pay more attention to outward conduct than to self-serving evidence of undisclosed intentions. As part of the normal process of fact-finding the court may infer the actual subjective intention from the outward and visible acts of the left-behind parent, but will not impute to the left-behind parent an intention which he did not in fact possess. Judges should be slow to infer an intention to acquiesce from attempts by the left-behind parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child. Nonetheless, it is for the judge, in all the circumstances of the case, to attach such weight as he thinks fit to such factors in reaching his finding as to the state of mind of the left-behind parent

[48] The second factual scenario capable of demonstrating the defence of acquiescence was described by Lord Browne-Wilkinson as exceptional. It is where the left-behind parent did not in fact internally acquiesce but where his outward behaviour demonstrated the contrary. If that outward behaviour showed clearly and unequivocally that the left-behind parent was not insisting on the summary return of the child then:

"…he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children." (p.88)

[49]The sort of conduct that might engage this defence would have to be very explicit, for example by signing a formal agreement allowing the child to stay where she is, or by participating in proceedings about the child in the other place (p.89). Passing remarks or letters written by a parent who has recently suffered the trauma of removal of his children, or requests for contact will not normally amount to the requisite clear and unequivocal conduct (p.90).

[50] It seems to me that the happening of the second factual scenario will be vanishingly infrequent. It will surely be a very rare case where a left-behind parent will outwardly consent to, or go along with, the retention, but will nonetheless inwardly be objecting to it.”

I have considered carefully the evidence, both written and oral of both of the parents, the surviving messages between them and the transcripts of the telephone conversations. Taking all of this material into account, I am satisfied that the father had indeed acquiesced in the mother’s retention of B in England. Although it is not possible to point to one message as setting out a specific agreement between the parties, when taken as a whole, I consider that the tenor of the parties’ messages is sufficient for me to be satisfied to the civil standard of proof that the father had acquiesced to B remaining here.

As the passages from the judgments that I have set out above demonstrate, it is sufficient for the parent seeking to rely on this defence to prove that the other parent has “gone along with” the retention; a phrase that I consider appropriately encapsulates the situation that pertained in this case.

As I have indicated in my summary of the messages that I have set out above, it is clear that from the outset, the father had availed himself of the resources found on the New Zealand Ministry of Justice website and was aware that he had open to him legal remedies to obtain a return of B to that jurisdiction. I accept that the father would not have had a complete understanding of the Convention or its details. However, he was aware that he had legal options available to him, he informed the mother of this and then chose not to pursue them for a significant period of time.

It is clear from the discussions that took place between the parties that both parents’ views on what the father should himself do changed from time to time. At various points there were discussions of the father coming to the UK on a spousal visa; on his coming on a family visa as a parent of a British child; on him remaining in New Zealand either for a further year or permanently. The parties were equally uncertain as to the future of their relationship; the mother making clear that she wanted time to explore her options; the father at time saying that he considered himself separated or stating that he would not see the mother and B again.

However, although there is an obvious lack of certainty as to whether the parents would have a future relationship, and whether or not the father had the objective of setting himself up in the UK, it is striking that the discussions during this period do not cover any debate as to where B should live. In my judgment, between 28 September 2024 and 3 March 2025, there is a clear assumption within the messages that whatever the father did, the mother and B would be remaining in England.

In my view this assumption clearly underlay the actions of both parents between those dates. The mother told that father that she was resigning her job in New Zealand and seeking a new one in England. His reaction was to wish her luck with the interviews. He made no objection to the mother taking steps to find a house or to enrol B in pre-school. Meanwhile, he was taking steps to draw together the threads of their previous life in New Zealand, renting out their former home, finding a new job for himself elsewhere in the country and discussing with the mother the sale of their possessions there such as her desk and B’s car seat.

I consider that the father’s behaviour during this period, when taken as a whole, demonstrates that he had acquiesced in B’s retention in England and that he had formed an intention not to seek a return under the Convention. In supporting the mother in her search to find a job, not challenging the steps that she was taking to integrate herself and B into life in the UK and in disposing of items of property which would be required if B and the mother returned to New Zealand I find that he had formed the subjective intention not to challenge B’s retention here. That subjective intention is consistent with the mother’s evidence that in late September / early October they agreed that she and B would remain in the UK. Even if I am wrong in this conclusion, I am also satisfied that the father’s actions and words led the mother to believe that he was not going to assert his right to the summary return of B.

For the father, Miss More O’Ferrall argued that the father expected that if there was to be a permanent move to the UK, the family as a whole would move together. She therefore argued that any agreement that was reached between the parents in respect of B’s stay in England was always conditional or contingent on a resolution being found as to the father’s own position, and that this was never resolved with the position in relation to the father changing day by day. She also argued that the messages needed to be viewed in the context of the father suffering severe emotion, stress and grief following B’s retention in England.

I have taken these arguments fully into account, but do not accept them. I have no doubt that the proposals as to what the father would himself do evolved over the period of the messages and that some of his earlier suggestions that he would not see the mother and child again were said in the heat of the moment, and did not represent his true wishes. That said, and notwithstanding the fluid nature of the father’s own plans, there was a five month period during which he took no steps to assert his right (of which he was aware) to bring legal proceedings to obtain B’s return, and during which he instead either stood by or actively encouraged the mother to take steps to integrate herself and B into a new life in England. At no stage during this period did the father say in any of the messages that B’s stay in England was conditional upon him moving to the UK; I do not see how it could have been given the father’s uncertainty in his own mind about his future plans. Moreover, the period between October 2024 and March 2025 was clearly long enough for any initial emotion arising from the mother’s actions to dissipate; that it did so can be seen by contrasting the highly emotional messages sent between 26 and 28 September with the later messages in November 2024 about the mother’s job hunting.

I have also carefully considered Lord Brown-Wilkinson’s injunction in Re H that judges should be slow to infer an intention to acquiesce from attempts by the left-behind parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child. However, here I consider that the father’s actions and inactions went beyond such steps. He was going along with the mother breaking her ties with New Zealand and setting up a new life for herself and B in England. When viewed as a whole I consider that the father’s words and actions amount to an acquiescence in the retention of B for the purposes of Article 13(a).

I therefore find that the mother’s defence under this ground is made out.