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The father made an application for the return of a child under the 1980 Hague Convention. The mother raised five defenses including that the father was estopped from asserting claims under the Hague Convention due to prior conduct that misled the mother into believing that the child’s removal was permitted. She argued that estoppel should be permitted as a defense as it was closely related to the exceptions to return in Article 13(1)(a) based on acquiescence and consent; because it is fact-dependent and cannot be stricken at the pleading stage; and because it is not prejudicial.

The father argued that this defence was legally insufficient as the 1980 Convention provides a set of narrowly defined exceptions to return. 

Motion to Strike granted, equitable estoppel argument is stricken. The 1980 Hague Convention provides for limited exceptions to return and estoppel is not among them.

Non-Convention Issues

The 1980 Hague Convention provides for limited exceptions to return and estoppel is not among them. The mother did not provide any legal authority to show that the Court had the authority to decline to order the child returned based on a theory of equitable estoppel.

Given the limited exceptions to return available under the Hague Convention, it is clear that the father would succeed regardless of any facts that might be alleged in support of the estoppel defence. While the mother’s estoppel theory may resemble the exception related to consent, she has already raised this and so any factual arguments related to consent could be pursued under Article 13(1)(a).