Sir Christopher Sumner :
Introduction
- This hearing arises from an originating application issued on behalf of the Applicant father, Mr B T, on 13 March 2008 under the Hague Convention. He seeks the summary return of his daughter E to Australia. She is now 2 years 3 months old having been born on 12 February 2006. This is resisted by the mother, Mrs J T, on two grounds under Article 13 of the Convention. Firstly she says the father acquiesced in her remaining in England with E. Secondly there is a grave risk that, to order E's return, would expose her to physical and psychological harm and otherwise place her in an intolerable situation.
Short history
- The father is a 41 year old Australia national. He has been married before and has two older daughters. The mother is a 28 year old British national. She met the father in Australia in 2003. They lived there until November 2003 when they came to England. They returned to Australia shortly before their marriage there in May 2004. They lived in England until December 2004 when they returned again to Australia. E was born there in February 2006.
- They had a tumultuous relationship. They separated and the mother returned to England with E on 30 September 2006. She says it was because she feared the father. It was his drunkenness when he became out of control, his drug taking, his violence and aggression to her, his lack of care of E, and his abuse to her and E. She went back in October 2006 after the father's solicitors had written threatening Hague Convention proceedings. There was reconciliation.
- She returned for the second time to the England with E on 30 November 2007. It was originally intended that a father should come with them for a holiday until 7 January 2008. He did not go but consented to them coming. Return tickets were purchased.
- About 18 December 2007 the mother told the father over the telephone that the marriage was over, and that she was not coming back to Australia. There were further telephone conversations between the two of them, culminating in one on 31 December 2007 the latter part of which the mother recorded. It is substantially agreed.
- It is common ground that by the end of the conversation the father had agreed to the mother remaining in the UK for a period of five year provided she brought E to Australia every year for a holiday after 2008. This the mother accepted. In a further telephone conversation on 9 January 2008 the father sought to withdraw his agreement. The reasons for this change by the father are in dispute.
- On 14 January 2008 his solicitors wrote to the mother seeking E's immediate return. Her solicitors answered 2 days later saying that the father had agreed to the mother staying in England. This the father denied. On 22 January the Central Authority of Australia made an application to the English Central Authority for the issue of proceedings. They were not issued until 13 March 2008.
The hearing
- It was listed for 14 and 15 May with a video conference booked for the second day. I heard preliminary arguments from Mr Williams for the father and Mr Cellan-Jones for the mother on the first day. There was a video conference early the next morning when the father gave evidence and was cross-examined. The mother's evidence was begun but completed later followed by final submissions. I reserved judgment.
The Hague Convention
- In summary it covers the position where one parent removes a child from country A where it is habitually resident to country B without the consent of the other parent. It also arises where, as here, a parent on holiday with a child in country B says they are not returning the child giving rise to a wrongful retention.
- Where both countries are signatories to the Convention, and the parent in country A has rights of custody, there is an obligation on country B to return the child forthwith to country A after a summary hearing if the return is contested. This is in order for the courts of country A to determine where the child should live.
- There are limited defences available to the abducting parent to prove. The two relied on here, acquiescence and grave risk, are not absolute. If established they give the courts of country B a discretion whether to order the return of the child or not.
- It is accepted that the father had rights of custody and that E was habitually resident in Australia when she left in November 2007. The father consented to her leaving but only for a holiday until 7 January 2008.
The mother's case
- She says that the father clearly acquiesced in her remaining with E in England prior to the proposed date of return. This is to be seen in what he told her, the messages he sent, and his letters. This is consistent with what he told others and his actions at the time. Furthermore, given his gross and violent conduct prior to their departure, to return E would expose her to a grave risk.
The father's case
- He does not dispute what he told the mother and wrote to her nor his actions to any significant extent. However the telephone call of 31 December on which the mother relies on does not on the face of it amount to clear and unequivocal acquiescence. It was part of negotiations. If it did amount to acquiescence, then it was obtained by deceit.
- The mother never intended to return when she left as she said in her Statement of Defence. She had already entered into a relationship with a friend in England prior to her departure. She contrived a situation to obtain his acquiescence. Such acquiescence, if any, as may be proved was conditional on her returning to Australia with E every year after 2008. This she subsequently demonstrated that she had no intention of keeping thus invalidating any acquiescence.
Undertakings
- Mr Cellan-Jones rightly accepted that, if the father gave appropriate undertakings to maintain and safeguard the mother and E pending court proceedings should they be ordered to return to Australia, he was unlikely to succeed on the defence of grave risk (see TB v JB (Abduction: Grave Risk Of Harm) (2001) 2 FLR 515). It was not possible in the time available for these to be agreed.
- I gave a preliminary indication about the father's offer of accommodation provided by his employers for the mother and E. This was in a small quite isolated mining town of Moranbah where the father works and to which he had moved after the mother had left. The mother had never lived there and I did not regard it as appropriate.
- This has resulted in their being no investigation into the parties' relationship and its relevance, if any, to the exercise of the court's discretion should this arise. This might ordinarily have a limited impact. Here given the mother's statement and that of her supporting witnesses the position may be rather different. I shall come to this later.
The issues
i) Has the mother proved that the father clearly and unequivocally demonstrated that he was not insisting on the summary return of E to Australia?
ii) If this has been proved -
iii) Has the father shown that it was obtained by deceit? If not,
iv) Has the mother shown that the court should exercise its discretion not to order the return of E to Australia?
Findings pre December 2007
- After the parties returned to Australia in December 2004 they lived in Queensland in rented accommodation at two coastal locations close to each other. The first until the end of 2006 when they moved to the second town living at two different addresses in the same street. The father worked 5 days on staying some 270 kms away before having 4 days off.
- In her first statement the mother outlined the father's behaviour of which she complains. She said he thumped her and kicked her, the last serious occasion being in August 2007 when he tried to strangle her, and the neighbours called the police. When drunk he did not know what he was doing and could not control himself. He frequently smoked cannabis, again leaving him unable to control his behaviour. He behaved badly towards her after drinking in pubs or other public faces, verbally abusing her. He spent the family money on drinks and drugs.
- She obtained domestic violence orders against him in February 2005 and November 2006. He breached one and was fined. She says that he ignored them. When neighbours called the police, he threatened that he would do terrible things to her if she told them what he had done. In August 2007 he threatened to slit her throat.
- She exhibited 12 statements from family and friends supportive of her allegations. It is sufficient if I set out some of the more serious extracts from them.
"His use of cannabis increased considerably to the point that he had to have a smoke first thing in the morning to function and smoked all through the day and evening. He had little or no regard for anyone else but himself, and despite promises of what we would do, it always had to be what B wanted to do which consisted mainly of drinking and smoking dope
he was constantly shouting at J, telling her to shut the kid up with some very abusive language thrown in, and eventually he shouted words to the effect of " if you don't shut that fucking kid up I will bounce her off the concrete"
B in my opinion, and I am confident in saying that it will be many other peoples' opinions too, is a hard drinking, pot smoking womaniser, who in his own admission, would be far better suited to the life of a single person, with nobody to answer to and no responsibilities."
"He always drank a lot, frequently and to excess and was generally an unpleasant drunk, who made those around him uncomfortable and uneasy. He would usually become loud, aggressive, abusive, and sometimes threatening when drunk
Since J returned to England she has become a different person to me, someone who is utterly relieved to be away from the way she was living. I know she was deeply unhappy - B was becoming increasingly violent towards her and I believe there were times when she feared for her daughter's safety."
"I have seen him acting in a violent manner towards people including J and I have also been party to the very abuse he would regularly subject J to."
"B physically restrained J and proceeded to punch in the face which knocked her crown out. J fell to the floor and curled into a ball. B kicked J while she was on the floor. I tried to pull B away and reason with him."
"On many occasions I have socialised with J and B at the same time
I find him to be a very nasty, vindictive, overpowering unstable man. I have seen B do some very disturbing things. He has threatened myself and my family and has verbally abused J in front of me the whole time that I have known them
I firmly believe that B likes having power over J as she does not fight back and does what he says. He is a malicious man, who I believe will stop at nothing to have power over J."
"I have spent a lot of time with B before I noticed how much alcohol he drinks. This worries me as he becomes even more aggressive than he normally does and often I feel scared around him
B stood up shouting at J who was sitting down, then he grabbed her by the throat, which looked like he was trying to strangle her and pushed her so hard she fell off the chair, and he continued to hold her by the throat on the ground
(a neighbour) called the police."
"We started having BBQ's, and that is when I started to notice the abusive manner of B towards J, both physical and mental. He would call her disgusting names ... One evening
(I) could hear B yelling and screaming at J then I noticed they were in the shed and B was choking J. That is when I called the police
on another occasion, B actually physically threatened me
Also at this time he spoke to his daughter
"You better stop that you little bitch or I'm going to flog the shit out of you till you are black and blue."
"J has come to me very upset on the number of times, saying she dreaded B T coming home, because he would always be drunk and abusive. J was scared for her and E's life... I saw B? J's throat and grab her around the neck while J was holding their daughter E
If I was in J T's position I would run back to England to the safety of my family so I could protect my babies
"
- The mother saw her general practitioner on 18 March 2008 because of the pending court proceedings. She was not sleeping properly or eating properly, and struggling to concentrate on anything.
"This was all due to her fear that they are going to be sent back to Australia. She is clearly frightened of the effect on herself and E if this should happen. On the Hospital Anxiety and Depression questionnaire when I saw her was 15 out of 21 which represents severe anxiety."
- The father accepts that when he was in England he went off the rails. They both agreed that on their return they would engage in relationship counselling, alcohol counselling and anger management. He started by seeing a psychologist but when the mother would not attend marriage counselling he did not pursue the other courses. He says the both he and the mother took cannabis, and he denies that he drinking alcohol excessively. He also denies trying to strangle the mother or kick her, but he accepts that he hit her after she had punched him several times. He accepts that he was once naked in a bar.
- I am unable to reach any definitive conclusions about the parties' relationship prior to the mother's departure in December 2007. Time did not permit it to be explored. However the number and consistency of the statements of the witnesses is remarkable, though of course they have not been tested. Individually they have the ring of truth about them. As a body of evidence it is a difficult to ignore the picture they paint, not all of which is denied by the father.
Findings after November 2007
- The father is convinced that the mother left Australia with the intention of not returning. He understandably relies upon her Statement of Defence of 25 March 2008.
- In that it is stated that she told the father that she wanted to come on vacation. This was the only way she could safely escape from the father's violence and aggression and protect E.
- The mother's statement of the same date did not deal with this matter. It was only in her second statement that she said that it was only after she had arrived in England and saw how happy E was and how quickly she had settled in, that she thought long and hard. She then decided that it was in E's best interests and hers to remain in England.
- The mother's supported her second statement in her evidence. I find that her second statement sets out the correct position, and that her Statement of Defence is incorrect. The visit was always intended to be a holiday for all three of them, and it was only when the father used the money for his fare on buying a boat that this fell through. The mother did not have any relationship prior to her departure as I set out later. She did not deceive the father about her intentions prior to her departure.
- It was on 18 December 2007 that the mother rang him to say that the marriage was over and that she intended to remain in England. I am satisfied that the father accepted this almost immediately which surprised the mother. In a further conversation two days later they discussed and agreed that the father would come to England to visit Eleanor in August, staying with friends of hers whom he knew and whom she immediately contacted. There were more telephone calls and text messages before the important telephone call of 31 January 2007 which the father asked the mother to make so they could discuss financial matters.
- It is important to see what happened between 18 December when the mother told the father that she was not returning and the deal which the father accepts was later made. The father's case is that the mother's news "ripped his guts out" as he told me. Thereafter he did not know what to do with or where to go. But he agreed that when he wrote to the mother on 20 December he realised it was over but he did not give up. The mother made clear throughout that there was no hope for of reconciliation.
- In so far as he agreed to the mother and E remaining in the UK, he said in his second statement that he felt that he was at her mercy, and that he had to agree anything she asked for if he was ever to see E again. He only changed his mind about E staying because he was attempting to compromise. There was no absolute agreement that was reached. The mother has now gone back on her proposals about contact, which shows that she was never serious about it.
- The relevant matters are as follows -
i) According to a friend, she had a text message from the mother on 20 December which she set out in her statement. I have altered the shortened version of the messages here and later. It starts
"Told B he's devastated but dealing OK with it considering. Big ask but if he wanted to come see E next year could he stay with you may be?"
ii) The father wrote to the mother with goods and photos he sent her on 20 December
"I'm so sorry it has come to this, I really thought that when you got back that next year we would grow and prosper as a family couple. I will miss you as you were my only real friend and I dread waking up not being able to? E good morning, she made me keep going."
"You both will always be in my heart and thoughts of every moment. And you will both have a home here are, should you ever need one!! Should you ever think of me, I only ask can think up the good times we had, because they do outweigh the bad. We were once an unstoppable team. "
"I know I can't change the pass, but I can change the future for which I will devote to my children if (?) you should ever see any good in me. Have a good Christmas with your family."
iii) With the goods he wrote a note saying "A few things I thought you might need. Let me know if there if there is other stuff." The cost of posting 2 parcels as the father accepted was a total of $A 319. There may have been a further cost of $A400 for postage.
iv) The father about this time sent the mother a mobile phone which could take pictures of E for her to send him. By text message about 3 January he said it was on its way.
v) On 3 January the father told the mother by email that he was selling her computer on the internet and selling her car in 2 weeks. In fact the car was not sold but left with a friend.
vi) Another friend told the mother by email of 29 January that the father told her on 6 January that the mother was not returning to Australia. In a further email of 17 April she said that it was at a charity market on 31 December that the father said the mother was not coming back.
"
he did not seem at all upset or angry. I asked him what he was going to do, to which he replied he would do nothing. He asked if it would be possible to break the lease of the rental property (I am the owner of the house), as it would be more convenient to live in single quarters at the mine and that he would vacate the property into three weeks, which I said was okay. He also said that he would give me all of E's clothing to sell at the market. I picked up the clothes about a week later
"
She added that about mid January he said he was going to pursue custody of E. He vacated the property on 18 February.
vii) On 5 January the father asked a friend to burn photos off the mother's computer onto a disc.
viii) The same day the father e-mailed the mother, thanking her for a photograph of her and E, which is what he meant about things being above board
"Things will only get better
Hope all is working out and happy job hunting. Don't forget to cash in boat trailer asap
Missing and always thinking about you both your best friend and dad xxxxxxx B."
The boat was registered in the mother's name, and the father told her that he had sold it to a cousin. He no longer needed a big boat if E and she were not coming on boat trips.
ix) The mother cashed in her return tickets on 7 January. About this time the father sent a text to the mother telling her to use what she got from the plane ticket. He was using E's maintenance to pay for air fares.
- Mr Williams for the father, whilst not conceding that this amounts to acquiescence, accepts the force of the mother's case which shows that the father may have consented to the mother remaining in England. He has concentrated on 3 matters. Firstly he says the mother deceived the father. Secondly the final agreement does not amount to a sufficiently clear and unequivocal agreement by the father. Thirdly the mother never intended to stand by what was agreed. I turn to the recorded conversation.
Recorded telephone message of 31 December 2007
- It runs to 22 pages. I find that the mother has truthfully set out in her evidence how the recording came about. On New Year's Eve she was at the home of old family friends. The friend's sister heard how the conversation was going and borrowed her brother's mobile for the mother to record it.
- They started with the payment of a loan the mother had taken out on a truck and how the father was going to pay it. Next there was discussion about the father taking photos off the mother's computer and what should happen to it, her mobile, and the boat and trailer. The mother did not want to put them in the father's name until he took over the debt.
- The father said she did not get child support so that E would have a ticket every year to come over. He did not agree at first to sign a letter saying he consented to the mother and E being in England. She wanted it the so that he did not turn round and demand that she came back to Australia.
F- "No way, I don't want you back here.
M- Yeah I know you don't want me back there, but you might want E back there.
F- Well that's no good cos I've got to work and she needs a mother, OK."
- They discussed why the mother wanted a letter. All the father was asking was for E to come to Australia and for him to have a good holiday with her. They talked about the cost of the journeys. They returned to the question of the letter, the father asking how long they would be in England. The mother said she would bring E to Australia, but she had no money.
- The father proposed that they could both go on holiday up North. The mother pointed out the impracticality of this if they had new boy or girl friends.
- There is a disputed section where the mother says that the father agreed to put his signature to a letter. It is accepted that the mother said in return said she would sign everything over to him and not ask for maintenance. It is again disputed whether the father agree to this at this stage. I find the father did agree to both matters.
- The mother explained why she wanted the letter, because he might say when she arrived on holiday that E was staying there. The father agreed as long as she wrote in the letter that he was allowed to have contact once a year in Australia. The mother agreed to this provided she got a letter which allowed her to remain.
- The father said that do anything to turn back their time and change things, but the mother said it was not going to happen. She said that there was no going back now. There then came the final passage.
F- "I'll tell you something.
M- What's that?
F- I'll sign it only for a period of time. Five years. Because if you, in that 5 years, decide you're going to fuck me around or whatever, well then the whole deal will be off.
M- Alright. Five years. That's cool. That's fine. No worries.
F- Righto.
M- Yep that's fair enough.
F Yep.
M- So, I'll get that drawn up at this end and I then post it to you. You sign it and send it back and then I'll send you letters confirming I'm signing all the vehicles and boat and crap all over to you.
F- Can you and in that don't forget the holidays either, OK?
M- Yes that's fine B. I'll work it out as and when I can do it but bear in mind that I've got to try and support me and E and if I've got a job
"
Subsequent events
- On 5 January the father sent the mother an e-mail
"Thanks for it means a lot to me. GOOD PHOTO OF YOU AND HER. This is what I mean of above board. Things will only get better ... Hope all is working out and job hunting. Don't forget to cash in on the trailer rego. asap. Will text when I know when I'll be back to do e-mail chat. Missing and always thinking about you both, your best friend and dad xxxx B."
- On the same day he sent a day further saying he was having trouble downloading. He had not received the photos she sent. He asked her to send him details of the friends who might provide accommodation for him in England. The mother replied the same day, giving him details of how to download the photos and saying that she sent some but did not know he had a new e-mail address. She sent them again later as well as telling the father how they can chat on line using webcams and E and he could see each other.
- On 9 January 2008 the father sent a text to the mother telling her she could use what refund she got from the plane tickets. In a further message from him that he said that the phone was on the way, and to cancel the boat trailer rego. He would send her new boots the next break.
"Will come over in August if all is above board I will sign the letter then. Will book flight end of Feb
"
- It is accepted that there was a subsequent telephone call between the mother and the father the same day. It led to the father's last text message also on 9 January.
"Fuck who you want. Ungrateful slapper. You think you are smart get ready for the fight of your life. You don't know when to shut your mouth. Solicitor will contact only now on. Deals off. FUCKING LYING SCHEMING THIG. XX for E UC T."
- The question is what led to this dramatic change in attitude by the father. He accepted in evidence that he said that E could remain in England provided he could see her in Australia. But he said it was not all worked out. The message he sent on 9 January above was because of what he found on the mother's computer. He did not remember what it said. It was a coded message, but reading between the lines that were someone else over. He mentioned documents from Reunite and Hague Convention. He highlighted violence, making an agreement and what she needed him to say.
- I reject that explanation in its entirety. His change of mind had nothing to do with what he found on the mother's computer nor his unfounded belief that the mother had a relationship in England before she left. The sole reason was what the father told the mother in a telephone conversation that day and her reaction.
- He said that he was thinking of doing six months on and six months off. He could then visit E for six months of the year. The mother said this was fine, but suggested that he should not take such drastic steps as moving jobs.
- As he told the mother at the time, she gave the wrong answer. She was not in his mind sufficiently enthusiastic about his proposal. In a moment of unjustified pique the father decided to call the deal off. That was the sole cause of the father's change of mind. It led to his solicitors' letter of 14 January and these proceedings.
The law
- I can set this out shortly as there is no difference between the parties. As Lord Browne-Wilkinson stated in Re H (Abduction: Acquiescence) 1997 1 FLR at pp 882 and 883 -
"In my view, Article 13 is looking to the subjective state of mind of the wronged parent. Has he in fact consented to the continued presence of the children in the jurisdiction to which they have been abducted?
In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in effect, gone along with the wrongful abduction.
(The judge) can infer subjective intention of the wronged parents from the outward and visible acts of the wronged parents...
Although each case will depend on its own circumstances, I would suggest judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect reconciliation or to reach an agreed voluntary return of the abducted child.
Therefore, in my judgment, there are cases in which the wronged parent, knowing of his rights, has so conducted himself vis-a vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children. However, in my judgment, these will be strictly exceptional cases. In the ordinary case behaviour of that kind will be likely to the judge to a finding that the actual intention of the wronged parent was indeed to acquiesce in the wrongful removal."
- In the earlier case of Re A (Minors) (Abduction: Acquiescence) 1992 2 FLR 14 Lord Donaldson in the Court of Appeal considered the question of whether an acquiescence can be withdrawn
"I think that it cannot, in the sense that, once there is acquiescence, the conditions set out in art. 13 are satisfied. On the other hand, an apparent acquiescence, followed immediately by a withdrawal may lead the court to question whether the apparent acquiescence was real, or whether it was the product of emotional turmoil which could not reasonably be interpreted as real acquiescence."
- I accept that consent obtained by fraud or based on a misunderstanding or nondisclosure is not valid and effective, because the consent is not unequivocal and real (see RE B (A Minor) (Abduction) (1994) 2 FLR 249 and T v T (Abduction: Consent) (1999) 2 FLR 912. I am not aware of any cases to which those principles have been applied in respect of acquiescence. However, I have no difficulty in accepting that they do apply. Thus acquiescence shown to have been obtained by fraud, misunderstanding or nondisclosure is unlikely to be effective.
Conclusions
- I find that the father did by his words and actions subjectively consent to the continued presence of the mother and E in England. If I am wrong on that he certainly so conducted himself that it would be wrong to let him now say that he intended to claim E's return all along.
- It is striking that in all the conversations and messages prior to 31 December the father did not ask her to reconsider her decision nor try to seek their return. This is of course nor sufficient by itself.
- The father does not dispute the conversation of 18 December. He was upset but raised no objection. There then follows what he did and said. All his conversations with the mother make it clear that he accepted the situation and consented to it. It was for that reason that he sent her the mobile phone so she could send photos of E. It is why he said that he was going to sell the mother's car, the family boat, and her computer after photos were removed, why he gave away much of E's clothes, and why he told her that the mother was not returning.
- It is the only explanation for why the father went to the significant expense of sending the mother's goods and photos, why he told the mother that she could spend the money from cashing in her return tickets, and why he said he would come over in August. Those matters by themselves are decisive.
- But that is not all. He also terminated the lease on the property, where he, the mother, and E had lived. That is incompatible with any other conclusion than that the father in fact subjectively consented to E remaining in England with her mother.
- I can attach added significance to those factors because of the history of October 2006. The father's solicitors wrote to the mother seeking her return and drawing attention to the Hague Convention. They wrote again on 14 January 2008. He was not acting in ignorance of what he was doing.
- He did not, I find, speak and act in an emotional turmoil, not knowing what to do or where to go. He is a person of resolute and determined nature, not readily deflected from what he wants to achieve. His ready acceptance of what the mother was proposing surprised her. He was upset, but he accepted the situation and went along with it. He was neither seeking to compromise nor agreeing to anything to see E again as he claims.
- Until the second phone call on 9 January all his actions and words reflected his subjective intention as set out above. He has tried subsequently to explain his actions. I prefer the account of the mother where they differ throughout.
- I have not accepted his later explanations for why he acted in this way. He knew perfectly well what he was going. He was neither so confused nor so muddled that he could not reach a clear decision. The mother neither deceived nor misled him. She only reached her decision not to return after she had arrived in England. There had been no on going relationship beforehand.
- The mother accepts that her relationship with Mr J is now a close one. She was wrong when she to say that this developed more recently. It is apparent from text messages that it was a developing relationship by mid January. However, he and his family were old friends of her family and she only re-met him on 31January. The relationship had therefore nothing to do with her earlier decision to remain in England nor was the father in any way misled.
- The telephone conversation of 31 December was based throughout on the basis as both parties accepted that the mother and E were not returning to Australia. The mother wanted a letter from the father, consenting to her remaining in England, to safeguard her on any future visit to Australia with E. The father strongly wished for such visits. He wanted a safeguard that the visits would take place every year after he came to England in August 2008.
- They reached an agreement which covered those two points. He agreed to sign a letter permitting the mother to remain in England with E for 5 years provided that she brought her to Australia every year after 2008. If she did not do so then the agreement was at an end. He subsequently agreed to sign the letter setting this out when he came over in August 2008.
- The question which arises is whether an agreement in those terms has been shown by the mother to come with in the meaning of acquiescence in Article 13. In principle I see no reason why a party cannot consent or acquiesce to a child going or staying abroad and specifying the length of time that this was to last.
- For instance, a father might agree that the mother could take a child to America for a year whilst she completed a course. Equally, if she had gone there with a child without his consent, fearing he would refuse, he might subsequently agree that she could remain there for a given period. It is an effective consent in the first case and an effective acquiescence in the second.
- Here the father agreed that the mother could remain for 5 years, a period he proposed and she accepted. But he also wanted to ensure that E would be brought to Australia for visits. He would only consent to her remaining away and sign a letter to that effect, provided there was an annual visit. He therefore made his consent conditional. This the mother accepted. It was a compromise on both sides, fully understood by them, and intended to govern the future residence of E and her father's contact with her.
- There are 2 most important matters when a parent agrees to the other living abroad with a child or subsequently acquiesces to this. They are the length of time the absence is to last and the contact which is to take place in the meantime. If the parties reach agreement on this, and one wishes to make their consent conditional on the performance of what they have agreed, I consider that within The Hague Convention the court can and, in many cases should, give effect to it.
- I therefore conclude that consent and acquiescence can be conditional. The terms however have to be clear, readily determined, and not obtained by fraud, misunderstanding, or deceit. They must be intended by both parties to be binding on each other. There is what I find happened here and in my judgment the acquiescence as agreed is valid and effective.
- The father sought to withdraw his consent in the telephone conversation and text message of 9 January 2008. It was not because the acquiescence was not real or that the father was in some emotional turmoil. It was not directly related to the terms that had been agreed. It arose solely because the mother was, in the father's eyes, less enthusiastic than he wanted her to be over his ideas of living in England for 6 months a year and giving up his job. The father's unjustified reaction does not terminate nor invalidate the earlier agreement.
- I also reject the notion that the mother would have gone back on her agreement to take E to Australia because her solicitor later mentioned supervised contact. This I am satisfied only arose because of her conversation with the father's first wife on 18 March 2008, again recorded. In that his first wife spoke of the father's irresponsibility with her children. Her solicitor had therefore insisted on supervised contact. It led to the mother's solicitor also mentioning supervised contact. It did not mean that she was rejecting the agreement which I am satisfied she never intended to do. It remains binding upon her for the next 5 years.
Discretion
- In the recent case of Re M and another (Children) (Abduction: Rights of Custody) (2007) 3 FLR 975 Baroness Hale of Richmond gave valuable guidance about the exercise of discretion in Convention cases. At paras 43, 44, and 45 she said
"My Lords, in cases where discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court discretion in the first place, and the wider consideration of the child's rights and welfare
The underlying purpose is to protect the interests of children by securing the swift and return of those who had been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the children will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary
In consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child may point to a speedy return so that her future can be decided in her home country."
- I have given this aspect of the case careful consideration bearing in mind all the circumstances of the case. I shall not repeat them. The start must be that E is only 2 years old and has lived all her life, save for the earlier visit to England, in Australia. That and the policy of the Convention point to E's return to Australia.
- On the other side is the general picture of the father's behaviour as summarised by the mother and highlighted by the witness statements. It impacts in a number of ways. There is the mother's real and justified fear of the father. It is set against the orders she has obtained because of his violence and his conviction for a breach of them. As she said -
"He has not made a promise he has not broken. (In Australia) I would always be looking over my shoulder."
- It is I find that fear which gave rise to the severe anxiety of which her general practitioner spoke. Obviously she does not want to return to Australia. That would not cause such a reaction. It is the father's conduct which lies at the heart of it. Though he has given undertakings about this, it is not surprising that they give the mother little comfort. There must be a real risk that there will be an increase in that anxiety should the mother have to return to Australia which will impact adversely on her relationship with E.
- Next there is a strong likelihood that the mother would be granted residence of E in any future proceedings. The father's contact would be likely to be restricted until he had demonstrated a sustained ability to care for her without supervision. Even now the mother complains of the father ringing up and being continually abusive to her as I accept, as well as speaking to E when he is drunk. She considers this causes E the nightmares she has after he has spoken to her, remembering his bad behaviour in Australia.
- There is then the question of whether she would be successful in an application to move permanently to England. Waite J considered the same question in W v W (Child Abduction: Acquiescence) (1993) 2 FLR 211 (approved by the Court of Appeal in H v H (1996) 2 FLR 21, overruled by the House of Lords on acquiescence in Re M but I have found helpful on discretion). It was whether the mother would be compelled to remain in Australia against her will for the sake of readier and more frequent contact to the father.
- On the facts of that case and as the mother had, as here, agreed to go back once a year, he considered there was a real possibility that she would be successful. Given the background, the prospects for the mother are every bit as high in this case probably higher.
- He also considered the choice of forum, the consequences of the acquiescence on the child being settled here, the uncertain nature of any home in Australia the former one having been sold, the extent of the emotional effect on the boy in order to return, important though not paramount, and the impression that the father was motivated by financial and tactical considerations.
- It would mean he said a double dislocation of a move there, a stay while the future was determined, and a return to this country. I see a marked similarity with this case. On the facts, having found acquiescence, he did not order the child's return.
- It has particular emphasis here given the extent to which E has settled and how necessary that is. The kindergarten and the music group E is attending have noticed the beneficial changes she has made.
"The reticent, wary child is developing into a happy social individual joining in with their activities and interacting with her peer group."
"E enjoys these are groups and since attending has developed from a shy, reserved child in the happy, confident child who has made many friends and benefited greatly from the stable routine of attending these activities."
- The mother's new friendship is relevant but to a much more limited extent. The father's consent gave her a freedom to contemplate new relationships which, if he had insisted on E's return on 7 January, she would not have had. It was a risk he took given that the mother is a young personable woman.
- It is I find a fine balance to strike given the policy of the Convention. Against that I have to have regard to the whole history, the father's behaviour to the family, his disregard and threats about court orders, his consent to E to staying, and the agreement which was reached. I have also have to have regard to the impact on the mother and her care of E, and the upheaval for E who is recovering from the trauma of her father's conduct. That no home for the mother is yet agreed is only relevant if that remains unresolved.
- I have given this whole matter anxious consideration. After much deliberation I have come to the conclusion that in the exercise of my discretion I should not order E to be sent back to Australia.
