CASE

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Case Name

Re S. (Abduction: Acquiescence) [1998] 2 FLR 115

INCADAT reference

HC/E/UKe 49

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal

Level

Appellate Court

Judge(s)
Butler-Sloss, Morritt and Ward L.JJ.

States involved

Requesting State

AUSTRALIA

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

26 November 1997

Status

Final

Grounds

Acquiescence - Art. 13(1)(a) | Procedural Matters

Order

Appeal allowed, return refused

HC article(s) Considered

13(1)(a)

HC article(s) Relied Upon

13(1)(a)

Other provisions

-

Authorities | Cases referred to
Re A. (Minors) (Abduction: Custody Rights) [1992] Fam 106, [1992] 2 WLR 536, [1992] 1 All ER 929; Re A. (Minors) (Abduction: Custody Rights) (No. 2) [1993] Fam 1, [1992] 3 WLR 538, [1993] 1 All ER 272, [1993] 1 FLR 396; Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682; Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716; Re S. (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819; Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72, [1997] 2 WLR 563, [1997] 2 All ER 225; W. v. W. (Child Abduction: Acquiescence) [1993] 2 FLR 211.

INCADAT comment

Exceptions to Return

Acquiescence
Acquiescence

Implementation & Application Issues

Procedural Matters
Oral Evidence

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a boy, was aged 1 1/2 at the date of the alleged wrongful retention. The boy had lived in Australia all of his life. The parents were married and both had custody rights in respect of the child. On 9 December 1996 the mother took the child to Wales to stay with the maternal grandparents. The nature of the visit was disputed.

On 15 January 1997 the mother telephoned the father to inform him that she and the child would not be returning.

The father received advice from three different sets of lawyers in Australia. In January 1997 the first set informed him that he could not obtain the return of the child.

In April the second solicitor informed him that although he could secure the return of the child, it would be likely that in substantive proceedings the Australian courts would allow the mother to relocate to Wales with the child. In September the third solicitor issued return proceedings.

On 10 November 1997 the High Court ordered the return of the child.

The mother appealed.

Ruling

Appeal allowed and return refused; the father had acquiesced in the retention of his son. The court exercised its discretion not to order the return of the child.

Grounds

Acquiescence - Art. 13(1)(a)

Where acquiescence is at issue the degree of knowledge held by an applicant as to the Hague Convention will depend on the facts of each case. Knowledge of the facts and that the act of removal or retention is wrongful will normally usually be necessary to establish acquiescence. But, to expect the applicant necessarily to have knowledge of the rights which can be enforced under the Convention is to set too high a standard. The court found that once the father was given the gist of the Hague Convention by the second solicitor he had sufficient knowledge. Having been given adequate and realistic advice he did not the seek the return of the child. It is irrelevant that he changed his mind in September. Acquiescence is not a continuous state of affairs and once given cannot be withdrawn. The court drew attention to the fact that it was not suggested in the evidence that the father was seeking to exercise care over the child. Rather, the emphasis in the case was on arrangements for contact. The court exercised its discretion not to order the return of the child. In so doing the court placed considerable emphasis on how it thought the Australian courts might respond to an application by the mother to relocate with the child. The court also considered the economic situation that mother and child would face if returned.

Procedural Matters

The Convention institutes a summary procedure and it is not the practice to allow oral evidence to be adduced, although there is always a discretion to do so.

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.

Oral Evidence

To ensure that Convention cases are dealt with expeditiously, as is required by the Convention, courts in a number of jurisdictions have restricted the use of oral evidence, see:

Australia
Gazi v. Gazi (1993) FLC 92-341, 16 Fam LR 18; [INCADAT cite: HC/E/AU 277]

It should be noted however that more recently Australia's supreme jurisdiction, the High Court, has cautioned against the ‘inadequate, albeit prompt, disposition of return applications', rather a ‘thorough examination on adequate evidence of the issues' was required, see:

M.W. v. Director-General, Department of Community Services [2008] HCA 12, [INCADAT cite: HC/E/AU 988].

Canada
Katsigiannis v. Kottick-Katsigianni (2001), 55 O.R. (3d) 456 (C.A.); [INCADAT cite: HC/E/CA 758].

The Court of Appeal for Ontario held that if credibility was a serious issue, courts should consider hearing viva voce evidence of witnesses whose credibility is in issue.

China - Hong Kong
S. v. S. [1998] 2 HKC 316; [INCADAT cite: HC/E/HK 234];

United Kingdom - England & Wales
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548; [INCADAT cite: HC/E/UKe 40];

Re W. (Abduction: Procedure) [1995] 1 FLR 878; [INCADAT cite: HC/E/UKe 37].

In the above case it was accepted that a situation where oral evidence should be allowed was where the affidavit evidence was in direct conflict.

Re W. (Abduction: Domestic Violence) [2004] EWCA Civ 1366, [2005] 1 FLR 727; [INCADAT cite: HC/E/UKe 771]

In the above case the Court of Appeal ruled that a trial judge could consider of his own motion to allow oral evidence where he conceived that oral evidence might be determinative of the case.

However, to warrant oral exploration of written evidence as to the existence of a grave risk of harm which was only embryonic on the written material, a judge must be satisfied that there was a realistic possibility that oral evidence would establish an Article 13(1) b) case.

Re F. (Abduction: Child's Wishes) [2007] EWCA Civ 468, [2007] 2 FLR 697; [INCADAT cite: HC/E/UKe 906]

Here the Court of Appeal affirmed that where the exception of acquiescence was alleged oral evidence was more commonly allowed because of the necessity to ascertain the applicant's subjective state of mind, as well as his communications in response to knowledge of the removal or retention.

Finland
Supreme Court of Finland: KKO:2004:76; [INCADAT cite: HC/E/FI 839].

Ireland
In the Matter of M. N. (A Child) [2008] IEHC 382; [INCADAT cite: HC/E/IE 992].

The trial judge noted that applications were heard on affidavit evidence only, except where the Court, in exceptional circumstances, directed or permitted oral evidence.

New Zealand
Secretary for Justice v. Abrahams, ex parte Brown; [INCADAT cite: HC/E/NZ 492];

Hall v. Hibbs [1995] NZFLR 762; [INCADAT cite: HC/E/NZ 248];

South Africa
Pennello v. Pennello [2003] 1 All SA 716; [INCADAT cite: HC/E/ZA 497];

Central Authority v. H. 2008 (1) SA 49 (SCA); [INCADAT cite: HC/E/ZA 900].

In the above case the Supreme Court of Appeal noted that even where the parties had not requested that oral evidence be admitted, it might be required where a finding on the issue of consent could not otherwise be reached.

United States of America
Ferraris v. Alexander, 125 Cal. App. 4th 1417 (Cal. App. 3d. Dist., 2005); [INCADAT cite: HC/E/USs 797]

The father argued that the trial court denied him a fair hearing because it determined disputed issues of fact without hearing oral evidence from the parties.

The Court of Appeal rejected this submission noting that nothing in the Hague Convention entitled the father to an evidentiary hearing with sworn witness testimony. Moreover, it noted that under California law declarations could be used in place of witness testimony in various situations.

The Court further ruled that the father could not question the propriety of the procedure used with regard to evidence on appeal because he did not object to the use of affidavits in evidence at trial.

For a consideration of the use of oral evidence in Convention proceedings see: Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 257 et seq.

Under the rules applicable within the European Union for intra-EU abductions (Council Regulation (EC) No 2201/2003 (Brussels II a)) Convention applications are now subject to additional provisions, including the requirement that an applicant be heard before a non-return order is made [Article 11(5) Brussels II a Regulation], and, that the child be heard ‘during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity' [Article 11(2) Brussels II a Regulation].