CASE

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Case Name

Re C.T. (A Minor) (Abduction) [1992] 2 FCR 92

INCADAT reference

HC/E/UKe 236

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

High Court

Level

First Instance

Judge(s)
Sir Stephen Brown P.

States involved

Requesting State

AUSTRALIA

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

16 January 1992

Status

Final

Grounds

Acquiescence - Art. 13(1)(a)

Order

Return refused

HC article(s) Considered

3 12 13(1)(a)

HC article(s) Relied Upon

13(1)(a)

Other provisions

-

Authorities | Cases referred to
Re A. (Minors) (Abduction) [1991] FCR 460.

INCADAT comment

Exceptions to Return

Acquiescence
Acquiescence

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a girl, was 1 1/2 at the date of the alleged wrongful removal. She had lived in Australia all of her life. The parents were separated and had joint rights of custody. On or about 4 July 1991 the mother went to England, her State of origin, with the child.

In July 1991 the father contacted the Australian Central Authority which subsequently communicated a request to the English Central Authority. Instructions were given to solicitors to initiate Hague Convention proceedings. However, the father did not pursue the matter and an originating summons was not issued.

The father travelled to England to attempt a reconciliation, but he was unsuccessful. In September 1991, following his return to Australia, the father wrote to the mother stating that he would not seek the return of the child.

On 12 September the father's solicitors wrote to the mother stating that the father would not proceed with the return application.

In November 1991 the father reactivated the application.

Ruling

Removal wrongful but return refused; the father had acquiesced in terms of Article 13(1)(a) and the court exercised its discretion not to order the return of the child.

Grounds

Acquiescence - Art. 13(1)(a)

On the balance of probabilities the mother had established that the father did subsequently acquiesce in the removal and retention of the child in England. While he did initiate Convention proceedings he did not pursue them. The father's letter of 9 September told the mother not to worry about proceedings under the Convention and reaffirmed that he did not actually want the child back, rather the proceedings were a device to get her to return to Australia. Furthermore, the letter from the Australian solicitors of 12 September confirmed that they had specific instructions from the father not to proceed with the application.

INCADAT comment

Acquiescence

There has been general acceptance that where the exception of acquiescence is concerned regard must be paid in the first instance to the subjective intentions of the left behind parent, see:

Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213];

Barry Eldon Matthews (Commissioner, Western Australia Police Service) v. Ziba Sabaghian PT 1767 of 2001 [INCADAT cite: HC/E/AU 345];

Austria
5Ob17/08y, Oberster Gerichtshof, (Austrian Supreme Court) 1/4/2008 [INCADAT cite: HC/E/AT 981].

Considering the issue for the first time, Austria's supreme court held that acquiescence in a temporary state of affairs would not suffice for the purposes of Article 13(1) a), rather there had to be acquiescence in a durable change in habitual residence.

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003, [INCADAT cite: HC/E/BE 545];

Canada
Ibrahim v. Girgis, 2008 ONCA 23, [INCADAT cite: HC/E/CA 851];

United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];

In this case the House of Lords affirmed that acquiescence was not to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.

Ireland
K. v. K., 6 May 1998, transcript, Supreme Court of Ireland [INCADAT cite: HC/E/IE 285];

Israel
Dagan v. Dagan 53 P.D (3) 254 [INCADAT cite: HC/E/IL 807];

New Zealand
P. v. P., 13 March 2002, Family Court at Greymouth (New Zealand), [INCADAT cite: HC/E/NZ 533];

United Kingdom - Scotland
M.M. v. A.M.R. or M. 2003 SCLR 71, [INCADAT cite: HC/E/UKs 500];

South Africa
Smith v. Smith 2001 (3) SA 845 [INCADAT cite: HC/E/ZA 499];

Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841].

In keeping with this approach there has also been a reluctance to find acquiescence where the applicant parent has sought initially to secure the voluntary return of the child or a reconciliation with the abducting parent, see:

United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];

P. v. P. (Abduction: Acquiescence) [1998] 2 FLR 835, [INCADAT cite:  HC/E/UKe 179];

Ireland
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416, [INCADAT cite: HC/E/IE 285];

United States of America
Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994), [INCADAT cite: HC/E/USf 84];

In the Australian case Townsend & Director-General, Department of Families, Youth and Community (1999) 24 Fam LR 495, [INCADAT cite: HC/E/AU 290] negotiation over the course of 12 months was taken to amount to acquiescence but, notably, in the court's exercise of its discretion it decided to make a return order.