Acquiescence defence to child abduction

International|December 5th 2019

As I am sure I’ve explained here numerous times previously, one of the defences to an application for the summary return of an ‘abducted’ child to their ‘home’ country raised by the ‘abducting’ parent is that the other parent acquiesced, either in the removal of the child from its home country, or in their retention in the ‘foreign’ country.

The acquiescence defence was given a thorough run-out in the recent Hague Convention on Child Abduction case KJC v GRC, heard by Mr Robert Peel QC in the High Court.

Factual summary

The relevant facts of the case can be summarised as follows.

  1. The father was born in the United States and is a citizen of that country.

  2. The mother was born in England and is a citizen of the United Kingdom.

  3. In 2013 the mother moved to the United States as a student, where she and the father met, their relationship starting the following year. Their first child was born in February 2016. They married in the United States in October 2017, and their second child was born in December 2017. Both children have United States citizenship. The family lived in California.

  4. The mother claimed that the relationship deteriorated and that she was abused by the father. The father denied all allegations against him.

  5. The mother formed a plan to move with the children to England, to escape the father’s abuse. Initially, the father was not told of the plan, but when he was he believed it to be nothing more than a temporary arrangement.

  6. The judge sets out what happened next thus: “On 2 December 2018 there was, according to [the mother], an incident of violence to which the police were called. The very next day [the mother] booked tickets to the UK. The purchase of tickets by [the mother] was not as a result of an arranged, pre-planned move with [the father], on a date agreed between them and with plenty of advance notice. Rather, it was, in my judgment, a precipitous decision by [the mother] as a result of an unpleasant incident which led her to decide, definitively, that her future with the children lay elsewhere.”

  7. The mother and the children flew to the UK two days later. The father was aware of her departure but had not consented to the children’s departure.

  8. At some point, after arriving in the UK the mother told the father that she and the children would not return.

  9. There then followed some discussions between the parties (or their lawyers) regarding what should happen to the children, which seemed to confirm the temporary nature of the arrangement.

  10. In March this year the father’s lawyers wrote to the mother’s lawyers stating that if no agreement as to a parenting plan could be reached, the father would demand that the children return to California no later than the 15th of April.

  11. No such agreement was reached, the children were not returned to California, and the father issued his application for the summary return of the children in July. The mother opposed the application, claiming that the father had acquiesced in the retention of the children in the UK and that there was a grave risk that a return would expose the children to physical or psychological harm, or would otherwise place them in an intolerable situation.

Two defences

The judge set out in some detail the law on both defences.

As to the acquiescence defence, he rejected the mother’s argument. The father expected that the removal was only temporary, at no time did he relinquish his right to make a Hague Convention application, he had not given clear agreement to the children remaining in the UK, and the fact that he had had sensible discussions about arrangements for the children did not amount to acquiescence.

As to the grave risk of harm defence, I will not go into details here. Suffice to say that the judge did not find it made out, having regard to a package of protective measures offered by the father, including a non-molestation undertaking.

Accordingly, the mother was ordered to return the children to California, where the courts would make any necessary decisions regarding their future, including their possible relocation to England.

The full judgment may be read here.

Get in touch 

If you would like any advice on acquiescence defence to child abduction and child law, you can find further articles here or please do contact our Client Care Team to speak to one of our specialist children lawyers here. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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