HC/E/UKs 107
UNITED KINGDOM - SCOTLAND
Inner House of the Court of Session (Extra Division)
Appellate Court
CANADA
UNITED KINGDOM - SCOTLAND
16 November 1994
Final
Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2)
Appeal dismissed, return ordered
-
Acquiescence may be inferred from unexplained inactivity. Where, however, apparent inactivity is explained and that explanation is accepted, no such inference can necessarily be drawn. The court found on the evidence that the father was anxious throughout to obtain the return of his child and took all the steps within his power to achieve that end despite being thwarted by the conduct or misconduct of his legal adviser.
For Article 12(2) to be activated the interest of the child in not being uprooted must be so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child’s future may be determined in the appropriate place. This is not just a balancing exercise between the requirements of the Convention and the interests of the child.
The interpretation given by the Inner House to the concept of acquiescence has been followed in a more recent Scottish appeal, see: M.M v. A.M.R. or M, Court of Session (Inner House), transcript, 14 November 2002 [INCADAT Reference: HC/E/Uks 500].
For an example of a case where prolonged inactivity (10 months) was held to amount to acquiescence, see: W. v. W. (Child Abduction: Acquiescence) [1993] 2 FLR 211 [INCADAT Reference: HC/E/UKe 52].
There has been general acceptance that where the exception of acquiescence is concerned regard must be paid in the first instance to the subjective intentions of the left behind parent, see:
Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213];
Barry Eldon Matthews (Commissioner, Western Australia Police Service) v. Ziba Sabaghian PT 1767 of 2001 [INCADAT cite: HC/E/AU 345];
Austria
5Ob17/08y, Oberster Gerichtshof, (Austrian Supreme Court) 1/4/2008 [INCADAT cite: HC/E/AT 981].
Considering the issue for the first time, Austria's supreme court held that acquiescence in a temporary state of affairs would not suffice for the purposes of Article 13(1) a), rather there had to be acquiescence in a durable change in habitual residence.
Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003, [INCADAT cite: HC/E/BE 545];
Canada
Ibrahim v. Girgis, 2008 ONCA 23, [INCADAT cite: HC/E/CA 851];
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
In this case the House of Lords affirmed that acquiescence was not to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.
Ireland
K. v. K., 6 May 1998, transcript, Supreme Court of Ireland [INCADAT cite: HC/E/IE 285];
Israel
Dagan v. Dagan 53 P.D (3) 254 [INCADAT cite: HC/E/IL 807];
New Zealand
P. v. P., 13 March 2002, Family Court at Greymouth (New Zealand), [INCADAT cite: HC/E/NZ 533];
United Kingdom - Scotland
M.M. v. A.M.R. or M. 2003 SCLR 71, [INCADAT cite: HC/E/UKs 500];
South Africa
Smith v. Smith 2001 (3) SA 845 [INCADAT cite: HC/E/ZA 499];
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841].
In keeping with this approach there has also been a reluctance to find acquiescence where the applicant parent has sought initially to secure the voluntary return of the child or a reconciliation with the abducting parent, see:
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
P. v. P. (Abduction: Acquiescence) [1998] 2 FLR 835, [INCADAT cite: HC/E/UKe 179];
Ireland
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416, [INCADAT cite: HC/E/IE 285];
United States of America
Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994), [INCADAT cite: HC/E/USf 84];
In the Australian case Townsend & Director-General, Department of Families, Youth and Community (1999) 24 Fam LR 495, [INCADAT cite: HC/E/AU 290] negotiation over the course of 12 months was taken to amount to acquiescence but, notably, in the court's exercise of its discretion it decided to make a return order.
A uniform interpretation has not emerged with regard to the concept of settlement; in particular whether it should be construed literally or rather in accordance with the policy objectives of the Convention. In jurisdictions favouring the latter approach the burden of proof on the abducting parent is clearly greater and the exception is more difficult to establish.
Jurisdictions in which a heavy burden of proof has been attached to the establishment of settlement include:
United Kingdom - England & Wales
Re N. (Minors) (Abduction) [1991] 1 FLR 413 [INCADAT cite: HC/E/UKe 106]
In this case it was held that settlement is more than mere adjustment to surroundings. It involves a physical element of relating to, being established in, a community and an environment. It also has an emotional constituent denoting security and stability.
Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT cite: HC/E/UKe 598]
For academic criticism of Re N. see:
Collins L. et al., Dicey, Morris & Collins on the Conflict of Laws, 14th Edition, Sweet & Maxwell, London, 2006, paragraph 19-121.
However, it may be noted that a more recent development in England has been the adoption of a child-centric assessment of settlement by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937]. This ruling may impact on the previous case law.
However there was no apparent weakening of the standard in the non-Convention case Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649,[INCADAT cite: HC/E/UKe 982].
United Kingdom - Scotland
Soucie v. Soucie 1995 SC 134 [INCADAT cite: HC/E/UKs 107]
For Article 12(2) to be activated the interest of the child in not being uprooted must be so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place.
P. v. S., 2002 FamLR 2 [INCADAT cite: HC/E/UKs 963]
A settled situation was one which could reasonably be relied upon to last as matters stood and did not contain indications that it was likely to change radically or to fall apart. There had therefore to be some projection into the future.
C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]
United States of America
In re Interest of Zarate, No. 96 C 50394 (N.D. Ill. Dec. 23, 1996) [INCADAT cite: HC/E/USf 134]
A literal interpretation of the concept of settlement has been favoured in:
Australia
Director-General, Department of Community Services v. M. and C. and the Child Representative (1998) FLC 92-829 [INCADAT cite: HC/E/AU 291];
China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825].
The impact of the divergent interpretations is arguably most marked where very young children are concerned.
It has been held that settlement is to be considered from the perspective of a young child in:
Austria
7Ob573/90 Oberster Gerichtshof, 17/05/1990 [INCADAT cite: HC/E/AT 378];
Australia
Secretary, Attorney-General's Department v. T.S. (2001) FLC 93-063 [INCADAT cite: HC/E/AU 823];
State Central Authority v. C.R [2005] Fam CA 1050 [INCADAT cite: HC/E/AU 824];
Israel
Family Application 000111/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 938];
Monaco
R 6136; M. Le Procureur Général contre M. H. K., [INCADAT cite: HC/E/MC 510];
Switzerland
Präsidium des Bezirksgerichts St. Gallen (District Court of St. Gallen) (Switzerland), decision of 8 September 1998, 4 PZ 98-0217/0532N, [INCADAT cite: HC/E/CH 431].
A child-centric approach has also been adopted in several significant appellate decisions with regard to older children, with emphasis placed on the children's views.
United Kingdom - England & Wales
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937];
France
CA Paris 27 Octobre 2005, 05/15032, [INCADAT cite: HC/E/FR 814];
Québec
Droit de la Famille 2785, Cour d'appel de Montréal, 5 December 1997, No 500-09-005532-973 [INCADAT cite: HC/E/CA 653].
In contrast, a more objective assessment was favoured in the United States decision:
David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991) [INCADAT cite: HC/E/USs 208]
The children, aged 3 and 1 1/2, had not established significant ties to their community in Brooklyn; they were not involved in school, extra-curricular, community, religious or social activities which children of an older age would be.
Unlike the Article 13 exceptions, Article 12(2) does not expressly afford courts a discretion to make a return order if settlement is established. Where this issue has arisen for consideration the majority judicial view has nevertheless been to apply the provision as if a discretion does exist, but this has arisen in different ways.
Australia
The matter has not been conclusively decided but there would appear to be appellate support for inferring a discretion, reference has been made to English and Scottish case law, see:
Director-General Department of Families, Youth and Community Care v. Moore, (1999) FLC 92-841 [INCADAT cite: HC/E/AU 276].
United Kingdom - England & Wales
English case law initially favoured inferring that a Convention based discretion existed by virtue of Article 18, see:
Re S. (A Minor) (Abduction) [1991] 2 FLR 1, [INCADAT cite: HC/E/UKe 163];
Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT cite: HC/E/UKe 598].
However, this interpretation was expressly rejected in the House of Lords decision Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937]. A majority of the panel held that the construction of Article 12(2) left the matter open that there was an inherent discretion where settlement was established. It was pointed out that Article 18 did not confer any new power to order the return of a child under the Convention, rather it contemplated powers conferred by domestic law.
Ireland
In accepting the existence of a discretion reference was made to early English authority and Article 18.
P. v. B. (No. 2) (Child Abduction: Delay) [1999] 4 IR 185; [1999] 2 ILRM 401 [INCADAT cite: HC/E/IE 391].
New Zealand
A discretion derives from the domestic legislation implementing the Convention, see:
Secretary for Justice (as the NZ Central Authority on behalf of T.J) v. H.J. [2006] NZSC 97, [INCADAT cite: HC/E/NZ 882].
United Kingdom - Scotland
Whilst the matter was not explored in any detail, settlement not being established, there was a suggestion that a discretion would exist, with reference being made to Article 18.
Soucie v. Soucie 1995 SC 134, [INCADAT cite: HC/E/UKs 107].
There have been a few decisions in which no discretion was found to attach to Article 12(2), these include:
Australia
State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232], - subsequently questioned;
State Central Authority v. C.R. [2005] Fam CA 1050 [INCADAT cite: HC/E/AU 824];
United Kingdom - England & Wales
Re C. (Abduction: Settlement) [2004] EWHC 1245, [2005] 1 FLR 127, [INCADAT cite: HC/E/UKe 596] - subsequently overruled;
China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825];
Canada (Québec)
Droit de la Famille 2785, Cour d'appel de Montréal, 5 décembre 1997, No 500-09-005532-973 , [INCADAT cite: HC/E/CA 653].
Article 18 not being included in the act implementing the Convention in Quebec, it is understood that courts do not possess a discretionary power where settlement is established.
For academic commentary on the use of discretion where settlement is established, see:
Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 204 et seq.;
R. Schuz, ‘In Search of a Settled Interpretation of Article 12(2) of the Hague Child Abduction Convention' [2008] Child and Family Law Quarterly.