LAW REPORT: 15 April 1997: Acquiescence a matter of parent's subjective intention

Re H and Others (Minors); House of Lords (Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Hoffman, Lord Clyde) 10 April 1997

The question whether a wronged parent had acquiesced in the wrongful removal of children for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction 1990 was one of subjective intention, and was a pure question of fact.

The House of Lords gave reasons for having allowed an appeal by the father against the decision of the Court of Appeal allowing the mother's appeal against the decision to return her children to Israel under the Convention.

The father and mother were both strict Orthodox Jews. The mother had taken their children from their home in Israel and had brought them to England without the consent of the father. She had begun proceedings in the county court. The father, as required by his religion, had taken no part in the proceedings until authorised to do so by his local Beth Din (a religious court of law), when he immediately invoked the Convention procedures.

Article 12 of the Convention provided for the return of a child who had been wrongfully removed or retained, and Article 13 provided that the requested state was not bound to order the return of such a child where the person opposing its return established that, inter alia, the person having care of the child had consented to or subsequently acquiesced in the removal or retention.

Mark Everall QC and Marcus Scott-Manderson (Reynolds Porter Chamberlain) for the appellant; Judith Parker QC and Lewis Marks (Mishcon De Reya) for the respondent.

Lord Browne-Wilkinson said that the primary question was whether the father, by pursuing his remedies in the Beth Din rather than promptly bringing proceedings for the summary return of the children under Article 12, had acquiesced in the removal of the children. The Court of Appeal had applied a rule of law, namely that in a case of "active" acquiescence, the actual state of the father's mind was irrelevant. The question was whether there was such a rule of law.

The distinction between "active" and "passive" acquiescence had first been drawn in Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106. The test applied by the Court of Appeal in the present case suggested that evidence of the wronged parent's actual intentions were irrelevant or seldom of any weight where there had been positive action of any kind by the wronged parent. The authorities did not support that proposition.

The appeal should not, however, be decided on that narrow ground. The authorities disclosed a variety of approaches to the meaning of "acquiescence" in Article 13 and it was desirable that their Lordships should attempt to state the principles to be adopted.

The first question to consider was whether acquiesence was subjective or objective. It was a concept which occurred in many different contexts in English law and which varied according to that context. Those English law concepts had, however, no direct application to the proper construction of Article 13. An international convention could not be construed differently in different jurisdictions. In his Lordship's judgment, acquiescence was a question of the actual subjective intention of the wronged parent.

Once that was established, it was clear that the question of acquiescence was a pure question of fact to be determined by the trial judge. Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or the voluntary return of the abducted child. Finally, it should always be borne in mind that under Article 13 the burden of proving acquiescence was on the abducting parent.

The only exception was where the words or actions of the wronged parent clearly and unequivocally showed and had led the other parent to believe that he was not asserting or going to assert his right to summary return of the child, and were inconsistent with such return.

Applying that approach to the present case, the judge had found that in fact the father had never acquiesced, and the mother had not shown that the case came within the exception.

Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: Multiple Apprentices Required

£6240 per annum: Recruitment Genius: Apprentices are required to join a privat...

Sauce Recruitment: HR Manager

£40000 per annum: Sauce Recruitment: This is an exciting opportunity for a HR...

Ashdown Group: Interim HR Manager - 3 Month FTC - Henley-on-Thames

£35000 - £40000 per annum: Ashdown Group: A well-established organisation oper...

Recruitment Genius: HR Advisor

£25000 - £30000 per annum: Recruitment Genius: Our Client has been the leader ...

Day In a Page

Syria crisis: Celebrities call on David Cameron to take more refugees as one young mother tells of torture by Assad regime

Celebrities call on David Cameron to take more Syrian refugees

One young mother tells of torture by Assad regime
The enemy within: People who hear voices in their heads are being encouraged to talk back – with promising results

The enemy within

People who hear voices in their heads are being encouraged to talk back
'In Auschwitz you got used to anything'

'In Auschwitz you got used to anything'

Survivors of the Nazi concentration camp remember its horror, 70 years on
Autumn/winter menswear 2015: The uniforms that make up modern life come to the fore

Autumn/winter menswear 2015

The uniforms that make up modern life come to the fore
'I'm gay, and plan to fight military homophobia'

'I'm gay, and plan to fight military homophobia'

Army general planning to come out
Iraq invasion 2003: The bloody warnings six wise men gave to Tony Blair as he prepared to launch poorly planned campaign

What the six wise men told Tony Blair

Months before the invasion of Iraq in 2003, experts sought to warn the PM about his plans. Here, four of them recall that day
25 years of The Independent on Sunday: The stories, the writers and the changes over the last quarter of a century

25 years of The Independent on Sunday

The stories, the writers and the changes over the last quarter of a century
Homeless Veterans appeal: 'Really caring is a dangerous emotion in this kind of work'

Homeless Veterans appeal

As head of The Soldiers' Charity, Martin Rutledge has to temper compassion with realism. He tells Chris Green how his Army career prepared him
Wu-Tang Clan and The Sexual Objects offer fans a chance to own the only copies of their latest albums

Smash hit go under the hammer

It's nice to pick up a new record once in a while, but the purchasers of two latest releases can go a step further - by buying the only copy
Geeks who rocked the world: Documentary looks back at origins of the computer-games industry

The geeks who rocked the world

A new documentary looks back at origins of the computer-games industry
Belle & Sebastian interview: Stuart Murdoch reveals how the band is taking a new direction

Belle & Sebastian is taking a new direction

Twenty years ago, Belle & Sebastian was a fey indie band from Glasgow. It still is – except today, as prime mover Stuart Murdoch admits, it has a global cult following, from Hollywood to South Korea
America: Land of the free, home of the political dynasty

America: Land of the free, home of the political dynasty

These days in the US things are pretty much stuck where they are, both in politics and society at large, says Rupert Cornwell
A graphic history of US civil rights – in comic book form

A graphic history of US civil rights – in comic book form

A veteran of the Fifties campaigns is inspiring a new generation of activists
Winston Churchill: the enigma of a British hero

Winston Churchill: the enigma of a British hero

A C Benson called him 'a horrid little fellow', George Orwell would have shot him, but what a giant he seems now, says DJ Taylor
Growing mussels: Precious freshwater shellfish are thriving in a unique green project

Growing mussels

Precious freshwater shellfish are thriving in a unique green project