Re AZ (A Minor)(Abduction; Acquiescence) l [1993] 1 F.L.R. 682 2 International Abduction [UK 1993] =========================================================== Re AZ (A Minor)(Abduction; Acquiescence) Court of Appeal Sir Donald Nicholls V-C, Butler-Sloss LJ and Sir Michael Kerr 29 Jul 1992 <* page 682> Child abduction - Acquiescence - Child wrongfully retained and cared for by mothers sister - Whether father acquiesced in child's retention - Whether father having sufficient knowledge of rights for acquiescence to be established -Hague Convention on the Civil Aspects of Child International Abduction 1980, as enacted by the Child Abduction and Custody Act 1985, Sch 1, Art 13(a) 001 The child, an American citizen. was born in Germany in February 1991 and was habitually resident there. His father was an American Air Force sergeant stationed in Germany and his mother was English. In October 1991 the mother, with the fathcr's consent, took the child to England to stay with her family. Once thcrc she decided not to return. She left The child with her sister. The father, who was on good terms with the mother's family, asked the aunt to look aftcr the little boy until he came to England for Christmas. On 19 December 1991 the aunt applied ex parte for a residence order and a prohibited steps order. The father was served with the orders on arrival in England and did not contest them. However, be initiated divorce proccedings in California in which he asked for care and control of the child. Before returning to Germany at the end of December 1991 he executed a power of attorney, effective for one year, in favour of the aunt to deal with the health, welfare and education of the child. He did not attend a directions hearing regarding the aunt's application for the care of the child and indicated to her solicitor that he was minded not to contest the proceedings. He visited his son on a monthly basis at the aunt's home. It was not until the end of March 1992 that he told the family that he intended io take the child back to Germany. He took no further action until 13 May 1992 when hc issued an originating summons under the Hague Convention seeking the return of the child to Germany. The judge found that the child had been wrongfully retained in England. She found that the father had procrastinated but had not at any time acquiesced either actively or passively in the child's retention, stating, in reliance upon a passage from the judgment of Stuart-Smith LJ in Re A (Minors) (Abduction; Acquiescence) [1992] 2 FLR 14 that acquiesecnce had to be given "in the knowledge of rights which had been breached and rights that could be enforced". Accordingly, she ordered the return of the child to Germany, his country of habitual residence. The child's mother, uncle and aunt appealed on the main ground that the father had acquiesced in the retention of the child within Art 13(a) of the Convention. 002 Held - allowing the appeal - in holding that in order to acquiesce it must be shown that the applicant had specific knowledge of the Convention, the judge had set to high a standard on the requirement uf knowledge of rights. On an overall assessment of the situation, viewed objectively, the father was an intelligent man capable of seeking advice, who made a c1car decision to leave the child where he was for the time being. There was no inconsistency between that decision and his application to the Caiifornian court for care and control at a later date. Acquiescence had to be conduct inconsistent with the summary return of the child to the place of habitual residence. It did not have to be a long-term acceptance of the existing state of affairs. Thr father had acquiesced in the retention of the child in England and, accordingly, thr direction to return him to Germany would be set aside and the case remitted to the High Court for consideration whether or not he should be returned to the jurisdiction of the German courts. <* page 683> Statutory provision considered Hague Convention on the Civil Aspects of International Child Abduction 1980, Art 13, as enacted by Child Abduction and Custody Act 1985 Case referred to in judgment A (Minors) (Abduction: Acquiescence), Re [1992] 2 FLR 14 APPEAL from an order of Booth J sitting in the Family Division of the High Court Patrick Eccles QC and Camilla de Sousa-Turner for the mother Andrew Ritchie for the father Cur adv vult BUTLER-SLOSS LJ: 003 This appeal arises from the application of the Hague Convention to a child found by Booth J on 21 May 1992 to have been wrongly retained in England by his mother and her family. The judge ordered his return to Germany. The aunt of the child is the appellant, but a complication has arisen in that the mother, who up to now has played no part, has come forward and asked for leave to intervene in the appeal and to file a notice of appeal. We have given leave. The aunt now believes that the mother should take over the care of the child from the aunt. 004 Z is the son of an American Air Force sergeant and an English girl. His parents were married on 4 February 1989 in Nevada, USA. His father has been stationed in Germany since January 1991. Z was born there on 4 February 1991 and is 17 months old. He is an American citizen, but until he came to England in 1991 he was habitually resident in Germany. His mother, with the consent of his father, brought him to England on 29 October 1991 to stay with her family. The father was to join them for Christmas and they were due to fly back together on 21 January 1992. The marriage was not however a stable one; in October 1991 the mother met and formed a relationship with another American airman stationed in England. She decided not to return to Germany. She left her child with her mother who was unable, through ill-health, to manage. The mother's sister (the aunt) and her husband stepped into the breach and took over the care of Z. The father was on manouevres in Spain, but he was contacted in November 1991 by the mother's family with whom he was on excellent terms. They urged him to come to England immediately to sort everything out, but for various reasons it was not convenient for him to come then. He asked the aunt to look after Z until he came to England at Christmas and the judge found that he agreed willingly to the aunt's proposals. On 19 December 1991 the aunt applied ex parte to the Oxford County Court for a residence order and prohibited steps order (under the provisions of the Children Act 1989) and both orders were made. The judge found that the purpose of the orders was to prevent the father from taking Z back to Germany. The father was served with the orders on his arrival in England. He filed an answer in which he disputed some immaterial statements, but otherwise indicated that there was nothing else relevant for the court to know and answered 'yes' to the question whether he agreed with the applicant's plans for the child. At this time he took no legal advice about the position in England, although the aunt suggested that he should do so. However, he arranged to be provided with <* page 684> Californian divorce papers which were notarised at an RAF base and initiated divorce proceedings in California which were filed in February 1992, in which he asked for joint custody to the mother and himself, but that he should have the care and control of Z. Both he and the mother signed the forms, although the mother did not appreciate the implications over custody. Before returning to Germany on 27 December 1991, the father executed a power of attorney in favour of the aunt to deal with the health, welfare and education of Z, which was effective for a year. He also handed to the aunt the child's social security papers and his birth certificate. There was a directions hearing fixed for the aunt's application for the care of Z on 17 January 1992 and the father telephoned the aunt's solicitor on 13 January 1992 and asked if he should come to England to attend the hearing. According to the attendance note of the solicitor, the father said he was minded not to contest the proceedings and did not wish to file an affidavit. He was advised to attend the final hearing on 14 May 1992, but that it was not necessary to attend the directions hearing. He did not attend. The aunt's lawyers believed her application would not be opposed. The father came to England to visit his son on a monthly basis at the aunt's home. It was not until 26 March 1992, after an argument, that the father communicated to the maternal family his intention to take over the care of Z and return with him to Germany. The parties were immediately reconciled, but the aunt became concerned as to the plans of the father and on 1 May 1992 her solicitor wrote to the father who did not reply to the letter. He issued the originating summons under the Hague Convention (Child Abduction and Custody Act 1985) on 13 May 1992. Consequently, the county court proceedings could not continue. The father's application came before the judge on 21 May 1992 and he sought the return of Z to Germany with him. The judge found that the child had been wrongfully retained in this country, either when the mother decided not to return or when the aunt took the county court proceedings. She also found that there had been no acquiescence by the father and consequently she had no option but to order the child to return to Germany. 004 The purpose of the Hague Convention is to discourage child abduction and to return a child wrongfully removed or retained as quickly as possible to the country of his residence in order that the courts of that country should decide where and with whom the child should live. 005 Despite some argument on behalf of the aunt, in my view this appeal does not turn on wrongful retention, habitual residence, or consent, but on acquiescence and I do not propose to set out the arguments on the first three points. In my judgment, the judge was entirely justified in her conclusions under Art 13 that the child was wrongfully retained and that his habitual residence was Germany. Whether the courts of Germany are best suited to deal with a child of an American father and an English mother adventitiously resident in Germany when the child was born is a matter for the parties and the German court. On the application of the Hague Convention, Germany is the country of habitual residence of Z and based on the judge's findings, unless Art 13 applies, the judge is bound to order the return of the child under Art 12. 006 The court has however a discretion not to return the child if one of the situations set out in Art 13 is proved. In this appeal Art 13(a) is relied upon: <* page 685> 'Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that- (a) the person, institution or other body having the care of the person of the child . . . had consented to or subsequently acquiesced in the removal or retention . . . ' 007 According to Lord Donaldson of Lymington MR in Re A (Minors) (Abduction: Acquiescence) [1992] 2 FLR 14 at p 29: 'In context, the difference between "consent" and "acquiescence" is simply one of timing. Consent, if it occurs, precedes the wrongful taking or retention. Acquiescence, if it occurs, follows it.' 008 It is clear that the present case turns on acquiescence. The judge relied on and applied a passage from the judgment of Stuart-Smith LJ at p 26 of the same decision: 'Acquiescence means acceptance, and it may be either active or passive. If it is active, it may be signified by express words of consent or by conduct which is inconsistent with an intention of the party to insist on his rights and consistent only with an acceptance of the status quo. If it is passive, it will result from silence and inactivity in circumstances in which the aggrieved party may reasonably be expected to act. It will depend on the circumstances in each case how long a period will elapse before the court will infer from such inactivity whether the aggrieved party had accepted or acquiesced in the removal or retention. A party cannot be said to acquiesce unless he is aware, at least in general terms, of his rights against the other parent. It is not necessary that he should know the full or precise nature of his legal rights under the Convention; but he must be aware that the other party's act in removing or retaining the child is unlawful. And if he is aware of the factual situation giving rise to those rights, the court will no doubt readily infer that he was aware of his legal rights, either if he could reasonably be expected to have known of them or taken steps to obtain legal advice. If the acceptance is active, it must be in clear and unequivocal words or conduct and the other party must believe that there has been an acceptance.' 009 On the present facts the judge found that the father procrastinated and took his time, which she found very significant, that he disliked confrontation and was fond of his wife's family, that he prevaricated and was from time to time ambivalent. She was impressed by the fact that he indicated in the Californian divorce papers an intention to take over the care of his son. He had made some inquiries as to how to care for him on the United States Airbase in Germany. She found that his intention in leaving the child with the aunt was to have him in a safe place until he could take over his care. She also found that after the court documents were served he felt he did not have any choice but to leave his son with the aunt until the <* page 686> hearing on 17 January 1992. She applied the words of Stuart-Smith LJ to the present case and indicated that acquiescence had to be clear, without doubt, unequivocal, not explicable in any other way: 'and it has to be done in the knowledge of rights that have been breached and rights that can be enforced. It has to be an informed acquiescence or otherwise it has to be such inactivity and such silence as must lead the court to infer acquiescence over a period of ti me, in acceptance of the situation.' 010 She concluded: 'I do not find anywhere in the evidence at all that there was an active or indeed a passive acquiescence to Z's retention in this country.' 011 Mr Ritchie, in his excellent argument to us, submitted that the aunt had to prove four points: 1. active or passive acceptance by the father of the wrongful retention; 2. knowledge that the retention was wrongful and that he had a right to enforce a summary return to Germany and with that knowledge was not enforcing that right; 3. clear and unequivocal acts; 4. the aunt believed that he was accepting the situation. 012 In considering points 1 and 2 together and the actions and inaction of the father, it is astonishing to me that if he was not in agreement with the aunt's plans for his son, the father did not either attend the hearing on 17 January 1992, or swear an affidavit or make a statement, or even answer the application with an indication on the form that at some stage he wanted to take over the care of the child himself. He made corrections to the form but no dissent from the aunt's proposals. He indicated agreement to the aunt's solicitor and he executed a power of attorney in favour of the aunt. He also handed to the aunt the child's birth certificate and social security book. He is a sergeant in the United States Air Force and accustomed to executing powers of attorney, which he himself proposed. He was able to initiate divorce proceedings in California and get his wife to sign them in circumstances which the judge found unsatisfactory for the wife. But none the less it is to be inferred that he did not have sufficient knowledge that his rights had been breached and that they could be enforced. The father knew that he had rights under American State law, but we are asked to accept that he believed he had no redress in courts other than the Californian ones. 013 I do not agree with the judge nor with the argument of Mr Ritchie that in order to acquiesce it must be shown that the applicant had specific knowledge of the Hague Convention. 014 The Master of the Rolls in his judgment to which I referred earlier continued: 'In each case (consent or acquiescence) it may be expressed or it may be inferred from conduct, including inaction, in circumstances in which <* page 687> different conduct is to be expected if there were no consent, or as the case may be, acquiescence. Any consent or acquiescence must, of course, be real. Thus, a person cannot acquiesce in a wrongful act if he does not know of the act or does not know that it is wrongful. It is only in this context, and in the context of a case in which it is said that the consent or acquiescence is to be inferred from conduct which is not to be expected in the absence of such consent or acquiescence, that the knowledge of the allegedly consenting or acquiescing party is relevant and, to use the words of Thorpe J, "the whole conduct and reaction of the husband must be investigated in the round".' 015 Both the Master of the Rolls and Stuart-Smith LJ refer to the necessity for knowledge of the facts and that the act is wrongful. They did not take the further step of the necessity of knowledge of rights under the Hague Convention. In my judgment the judge misdirected herself in stating that 'acquiescence has to be done in the knowledge of rights that have been breached and rights that can be enforced'. That statement goes too far. If a father knows that his son has been retained in another country against his wishes and he wants him back and has the capacity to and is able to seek legal advice as to what proceedings he might be able to take, the factual situation has arisen upon which he may objectively be considered to have sufficient knowledge either to consent or to acquiesce in the situation which has occurred. 016 The present facts are stronger than those in Re A and the considered answers of the father to the application by the aunt, after being advised to seek legal advice from an English lawyer, coupled with the evidence that the father is an intelligent man capable of seeking advice who, within a few days, started the Californian proceedings, leads me irresistibly to the conclusion that he was making a clear decision to leave Z with the aunt for the time being. That period was not limited to a few days or even weeks because he did not attend the hearing in January 1992 or make any move to ask for the child back until April 1992 when he telephoned the American Embassy in London and was sent the Hague Convention pack. From the granting of the power of attorney it can be inferred that the period would not exceed one year. 017 Active acquiescence, which I believe this to be, has to be clear but it does not have to be an acceptance of an unchangeable state of affairs. I see nothing incompatible with acquiescence to the continuance of a wrongful and an application to the Californian court for custody and retention care and control to himself which would take place at a later date. This father recognised the good care being taken of his son by the aunt and there was no urgency in his mind in changing the existing arrangements until either a court order or, as it turned out, a change of heart. Acquiescence has to be conduct inconsistent with the summary return of the child to the place of habitual residence. It does not have to be a long-term acceptance of the existing state of affairs. 018 It seems clear that until the disagreement in March 1992 between the father and the mother's family, the family believed that the father was agreeing to the child remaining with the aunt indefinitely. He took no steps to dispute the care of the child by the aunt until he launched the present ap lication in May 1992. In my view his acceptance of the existing <* page 688> position was clearly communicated to and recognised by them and was not in any way incompatible with a suspicion that that he might come back at a later stage and then ask to take over the care of the child. 019 I have hesitated to differ from the inferences drawn by the most experienced trial judge, particularly since she heard oral evidence from the father and the aunt. In my judgment, however, she was over-influenced by the observations of Stuart-Smith LJ, which in my view she misinterpreted. She set too high a standard for the requirement of knowledge of rights. She also concentrated overmuch in a subjective approach to the evidence of the father, rather than an overall assessment of the whole situation. I do not believe that this is a case of inferences to be drawn from various strands of the conduct of the father seen primarily from his point of view which put together form a pattern of non-confrontation, prevarication and procrastination. Standing back and looking at the father's case, in my view it is a clear case of acquiescence which was accepted and acted upon by the mother's family. 020 This is an unusual case, with the dispute in the court below between the father and the aunt. It is now complicated by the re-emergence of the mother over whose interest in the child there have to be question-marks. Her intervention does not alter the resolution of the immediate issue under Art 13, but it may well have a marked effect upon the exercise of the D court's discretion as to the future well-being of Z. 021 I would allow this appeal, set aside the direction to return Z forthwith to Germany and remit the case to the High Court for consideraton whether the child should or not be returned to the jurisdiction of the German courts. SIR MICHAEL KERR: 022 I agree with the judgment of Butler-Sloss LJ that this appeal should be allowed on the grounds of the father's acquiescence to the retention of Z in the care ofhis atint and Uncle so as to preclude the father from claiming the right to have the boy returned to Germany under the Hague Convention. 023 The facts of the case are unusual, including the matters on which the judge relied as constituting a wrongful retention. In that regard she said: 'First, there is the question whether there was there a wrongful retention. There are two points of time, in my judgment, when Z was retained in this country wrongfully. Wrongful retention for the purpose of the Convention means retention "in breach of the rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention". The rights of custody, according to the German civil code, vest in the mother and father, they being married. The first point of time when Z's retention in this country was, in my judgment, wrongful was at the point that the mother decided not to return to Germany; that is, in November 1991. That was a unilateral decision taken by her. It was in breach of the father's custody rights because she H did not intend to return Z to Germany, in breach of the agreement that they had previously come to. The mother decided, without consultation with the father, that Z should stay with [the aunt and her husband]. The mother says that had the father come over to this country and at that <* page 689> point required or demanded or asked that Z should go back to Germany with him, she would not have objected and neither would any of her family. But it seems to me that by her unilateral decision to keep the child in this country herself and not return there was a wrongful retention. The second, and perhaps the stronger, of the two points of time when the retention can be considered to be wrongful, was on 19 December 1991 when, on the ex parte application to the Oxford County Court, the aunt . . . obtained, first, the residence order (that Z should reside with er until 17 January 1992) and, secondly, the prohibited steps order (that he should not be removed from the jurisdiction). It was a unilateral decision to make that application and it was not taken in consultation with the father. The most that the father had done was to agree that until he could come to this country Z should remain with [the aunt and her husband] and not live with the mother. He had agreed to nothing else. He certainly had not been asked, nor had he agreed, to the prohibited steps order being obtained.' 024 Without deciding the point, particularly since it has not been pressed in argument, I am doubtful about the first ground on which the judge relied. It seems to me that the uncommunicated decision which the mother took in her own mind in November 1991 not to return the boy on 21 January 1992 could hardly constitute a wrongful retention in November 1991. It was at most an uncommunicated intention to retain him in the future from which she could still have resiled. But on balance I am driven to agree with the judge on the second ground, which she recognised to be the stronger one, although it seems odd that an otherwise lawful and unconcealed application to a court can constitute a wrongful retention. However, the unusual nature of this act as constituting a wrongful retention appears to me to have some relevance to the question of acquiescence, as mentioned below. 025 I think, with respect, that the judge erred in three respects in her conclusion that there was no sufficient acquiescence by the father on the facts of this case. 026 First, I think that she approached the question of his acquiescence by placing too much emphasis on what she considered to be his subjective state of mind instead of concentrating on his conduct, viewed objectively, and on the effect which, to his knowledge, it conveyed to [the aunt]. Thus, the judge said: 'The mother gave a piece of evidence which I think showed some insight into the father's character. She said of him, "He tends to procrastinate, he is very short-tempered and insecure. He says he will do something but he doesn't. He takes his time". I bear in mind that piece of evidence on considering the situation now in relation to the questions that I have to determine.' 027 However, for the reasons explained by Butler-Sloss LJ, the father's outward conduct, until at least March 1992, was in all respects only consistent with his acquiescence to the boy remaining in the care of the aunt for the time being, as opposed to insistence upon the boy's immediate <* page 690> return to Germany, and that is what the aunt understood, perfectly reasonably on the facts. 028 Secondly, I think that on the facts of this case the judge gave too much weight to the consideration that acquiescence requires knowledge that the act of retention is wrongful within the scope of the Hague Convention. The aunt's application to the court was only wrongful in a technical sense and was not unlawful. It was directed in part against the mother as well as the father, and the affidavit in support contained no inaccuracies. But, even assuming that it was wrongful for the purposes of the Convention, as I do, it must have been perfectly obvious to the father, when he was asked to fill in the form headed 'Respondents' Answer' for the purposes of an inter partes hearing, that he had every right to object to everything connected with the application. For this purpose he needed no legal advice. The questions which he was asked spoke for themselves, at any rate to a person of his intelligence and experience. He objected to the contents of the aunt and uncle's statements in their application form and affidavit in certain respects, but expressly signified his agreement with all those which were material to the question whether he acquiesced to Z remaining in the aunt and uncle's care for the foreseeable future. 029 In these circumstances, I cannot see that his conduct connoted anything other than acquiescence to the status quo for the time being. True, he did not agree to anything permanent, as one can see from one of his affidavits, where he said: 'When I signed the documents [that is the form] it was never my intention that the child should remain in this country permanently and I did not mean in any way to give that impression to the defendants or to the court.' 030 I emphasise the word 'permanently' in that passage, for that is not the issue with which this appeal, or the Convention, is concerned. That brings me to the final and most important matter on which I cannot agree with the judge. She appears to have attached great weight to the fact, which is undoubted, that at all material times the father intended to seek joint custody and sole care and control through the Californian courts. But this is not inconsistent with his acquiescence to Z remaining, meanwhile, in the care of the aunt and uncle. I think that his conduct demonstrated that he was acquiescing to this, as opposed to seeking the summary return of the boy to Germany and having his future decided by a German court. That is the aspect - summary return to Germany - which is relevant to the Convention and to which the question of acquiescence falls If to be directed. The father's state of mind, judged objectively as well as, in my view, subjectively, was to leave the boy with the aunt pending a hoped-for successful outcome of the Californian proceedings; not to seek his return to Germany in the interim. 031 Accordingly, I would also allow this appeal. SIR DONALD NICHOLLS V-C: 032 I also agree and I add only a brief comment on the concept of acquiescence in the removal or retention of a child. The context is an exception to the general Convention rule of summary and speedy return of a child who has been wrongfully removed <* page 691> to or retained in another contracting State. If the person who had care of the child consented to the removal or retention he cannot afterwards, when he changes his mind, seek an order for the summary return of the child pursuant to the Convention. Likewise if he acquiesces. It seems to me that the underlying objectives of the Convention require courts to be slow to infer acquiescence from conduct which is consistent with the parent whose child has been wrongly removed or retained perforce accepting, as a temporary emergency expedient only, a situation forced on him and which in practical terms he is unable to change at once. The Convention is concerned with children taken from one country to another. The Convention has to be interpreted and applied having regard to the way responsible parents can be expected to behave. A parent whose child is wrongly removed to, or retained in, another country is not to be taken as having lost the benefits the Convention confers by reason of him accepting that the child should stay where he or she is for a matter of days or a week or two. That is one edge of the spectrum. 033 At the other edge of the spectrum the parent may, again through force of his circumstances, accept that the child should stay where he or she is for an indefinite period, likely to be many months or longer. There is here a question of degree. In answering that question the court will look at all the circurnstances and consider whether the parent has conducted himself in a way that would be inconsistent with him later seeking a summary order for the child's return. That is the concept underlying consent and acquiescence in Art 13. That is the touchstone to be applied. 034 I am not able to accept that, in applying this test, there cannot be acquiescence unless the parent knew, at least in general terms, of his rights under the Convention. Whether he knew or not is one of the circumstances to be taken into account. The weight or importance to be attached to that circumstance will depend on all the other circumstances of the particular case. 035 I turn to the present case. I agree that here the father did acquiesce in the retention of Z in England for the purposes of Art 13. The factor which weighs most with me is the attitude the father, an intelligent man, adopted in the English court proceedings and regarding the hearing of 17 January 1992. He accepted that Z would stay with the aunt for the indefinite future and he accepted that in the context of court proceedings when he must have known that if he disagreed with Z staying in England in that way indefinitely, he could and should say so. That conduct seems to me inconsistent in this case with the father seeking to claim the summary return of Z to Germany. The very experienced trial judge fell into error in her approach in this case. 036 I too would allow this appeal. I add only this, and it really goes without saying, that there should be no publication of any facts which would be likely to lead to the identification of Z. Appeal allowed. No order for costs, save legal aid taxation of all parties. Solicitors: Pritchard Joyce & Hinds for the father Bower & Bailey for the mother and aunt PATRICIA HARGROVE Barrister