Law Report: Wrong advice was reason for delay: Re S (minors); Court of Appeal (Lord Justice Neill, Lord Justice Hoffmann and Lord Justice Waite), 3 February 1994

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The Independent Online
A father's delay in bringing proceedings for the return of children under the Convention on the Civil Aspects of International Child Abduction, which was attributable to wrong advice by his legal advisers, did not amount to acqueiscence in the children's removal.

The Court of Appeal dismissed a mother's appeal against Mr Justice Singer's decision that he had no jurisdiction to refuse an order for the return of three children to the father in Australia. Following the 1993 breakdown of the marriage of the parents, migrants from Britain, the mother brought the children to England without the father's permission. The father initially threatened court action but he received faulty advice from Australian solicitors about the cost of bringing proceedings under the Convention on the Civil Aspects of International Child Abduction for the return of the children and did not realise he would be entitled to legal aid in England. Eight months later, he was advised that he could invoke the Convention. In November he sought a return order under article 12. The mother's objection, that the father had by his delay in bringing the proceedings acquiesced in the removal for the purposes of article 13(b), failed.

James Munby QC and Derrick Pears (Letcher & Son, Ringwood) for the mother; Henry Setright (Kingsley Napley) for the father.

LORD JUSTICE WAITE said the issue was whether the father's explanation for the delay, namely the erroneous advice he initially received, negatived the prima facie inference of acquiescence to which the father's previous inaction had given rise. Acquiescence was primarily to be established by inference drawn from an objective survey of the acts and omissions of the aggrieved parent. That did not mean, however, that any element of subjective analysis was wholly excluded. In the circumstances, the court answered the central question: had the aggrieved parent conducted himself in a way that was inconsistent with his later seeking a summary return?

Mr Justice Singer was fully justified in having regard to the fact that erroneous advice was given to the aggrieved parent concerning his rights under the convention as a circumstance relevant to the question of whether he had acquiesced in the wrongful removal.

It was for the judge to decide what weight was to be given to the advice the father received. No fault could be found in the judge's reasoning which led him to conclude that faulty professional advice provided an explanation for the father's inaction - notwithstanding that such inactivity was conduct from which acquiesence might in other circumstances have been properly inferred.