CASO

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Nombre del caso

M.M v. A.M.R. or M. 2003 SCLR 71

Referencia INCADAT

HC/E/UKs 500

Tribunal

País

Reino Unido - Escocia

Nombre

Second Division of the Inner House, Court of Session (Escocia)

Instancia

Tribunal de Apelaciones

Estados involucrados

Estado requirente

Estados Unidos de América

Estado requerido

Reino Unido - Escocia

Fallo

Fecha

14 November 2002

Estado

Definitiva

Fundamentos

Aceptación posterior - art. 13(1)(a)

Fallo

Apelación desestimada, restitución ordenada

Artículo(s) del Convenio considerados

12 13(1)(a)

Artículo(s) del Convenio invocados en la decisión

13(1)(a)

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

INCADAT comentario

Excepciones a la restitución

Aceptación posterior
Aceptación posterior

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The three children, two girls and a boy, were aged 5, 3 and 2 respectively, at the date of the alleged wrongful retention. They were habitually resident in the USA. The parents were married and had joint rights of custody. On 3 May 2001 the mother travelled to Scotland with the three children in order to spend a holiday with her parents. The mother and children had return tickets for 2 August 2001. The father had consented to their stay in Scotland during this period.

In July 2001 the mother informed the father that she and the children would not be returning. On 16 August 2002 the father applied for the return of the children under the Convention. On 18 October 2002, the court of first instance (Outer House of the Court of Session) ordered that the children be returned. The mother appealed.

Ruling

Appeal dismissed and return ordered; the father's delay in applying under the Convention was found to have been reasonable and was therefore not sufficient to show that he had acquiesced in the retention of the children.

Grounds

Acquiescence - Art. 13(1)(a)

The mother argued that the father’s failure to issue return proceedings for over 12 months indicated that he had acquiesced in the retention. The court held that where delay in issuing a return application was raised as a basis for acquiescence, consideration must be given as to whether there was a reasonable explanation for the delay. It was noted that the father had been experiencing: financial problems, medical problems and had lost his job. Additionally, he was anxious to avoid litigation and sought an amicable settlement. His eventual application under the Convention had been precipitated by a residence application made by the mother in Scotland. It was only in July 2002 that the father became aware of services which could be offered to him by the United States Central Authority. By that time he had found employment. He was, therefore, in a better position to pursue an application under the Convention. The court ruled that at no point had the father given any indication that he had acquiesced in the retention. It noted that he had sent a succession of emails to the mother clearly indicating that he did not acquiesce in the retention. Consequently, the reasons for the delay in his application were reasonable and did not amount to acquiescence.

INCADAT comment

The interpretation given by the Inner House of the Court of Session mirrors that it had previously adopted in the case of Soucie v. Soucie 1995 SC 134 [INCADAT Reference: HC/E/UKs 107]. 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].

Acquiescence

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.