The rationale behind the Hague Convention on Child Abduction is that the child should usually be returned to their ‘home’ country, where decisions as to their welfare should be decided. It is therefore comparatively rare that a return is not ordered. Accordingly, ‘non-return’ cases are more likely to be noteworthy.
The latest such case that I have come across is CA v KA, a decision of Mr Justice Mostyn in the High Court. The case turned on the issue of acquiescence, i.e. whether the ‘non-abducting’ parent had consented to, or acquiesced in, the retention of the child in the ‘foreign’ country.
The relevant facts of the case were that the parents were married and lived in Germany, along with their daughter, who was born on the 5th of July 2016. On the 3rd of August 2018 the mother brought the child to this country, for the purposes of a holiday. They were booked to return to Germany on the 30th of August 2018, but they did not return. The father then made an application under the Convention for the summary return of the child to Germany.
The crucial moment in the case came on the 22nd of October, when the parents spoke for about two and a half hours on the telephone. During the course of that conversation, Mr Justice Mostyn found, they reached a substantive agreement, which provided that the child would remain in the primary care of her mother and would have frequent contact with her father.
On the following day the father wrote an email to the German authorities requesting the withdrawal of his Hague Convention application, and stating that “my wife and I were able to find a very good and mutually agreed solution which is in our daughter’s best interests and which we will regularise.”
On the next day the mother sent a draft parenting agreement to the father, which was prepared by her and which stated that the matters were agreed on the 22nd of October, including that the child would reside in the United Kingdom with her mother.
Notwithstanding all of the above, the father proceeded with his Hague application (presumably, he withdrew his request to withdraw the application, the judgment of Mr Justice Mostyn does not explain). However, Mr Justice Mostyn found that the email and draft agreement clearly showed that the father had consented to, or acquiesced in, the retention of the child in this country by the mother.
As he went on to explain, proof of acquiescence does not establish an absolute defence to the application. However, it opens the door to the court exercising its discretion to refuse to order the return of the child. Here, whilst Mr Justice Mostyn was quite clear that it should be the German courts that make decisions regarding the child’s welfare, he did not believe that it would be in her interests for her to be uprooted and to be exposed to the risk of ‘ping pong’, returning her to Germany now, in circumstances where the mother must have a strongly arguable case in the German court to be granted permission to relocate with her to this country.
Accordingly, he declined to exercise his discretion to order a return of the child to Germany, and the father’s application was dismissed.
An interesting case, although I have to say rather an odd one, in that the father decided to proceed with his application after clearly indicating his wish for it to be withdrawn. Once his email to the German authorities came to light (and he produced it himself on the morning of the hearing), then his application was surely doomed.
You can read the full judgment here. (Mr Justice Mostyn also has some important things to say about the limited nature of Hague applications, and the need for the parents to pursue substantive relief (as to what is ultimately in the child’s best interests in terms of residence and contact with the non-residential parent) in the courts of the ‘home’ country – see paragraphs 5 to 9 of the judgment.)
