Acquiescence or Consent

Hague Convention on International Child Abduction: Acquiescence and Consent

by Jeremy D. Morley

It is a defense to a claim of wrongful removal or retention of a child under the Hague Convention on the Civil Aspects of International Child Abduction that the petitioner had consented to or subsequently acquiesced in the removal or retention. Convention, Article 13a. Around the world, courts uniformly hold that the proof of a parent's consent to or acquiescence in the removal of a child or to the holding-over of a child must be extremely clear, convincing and entirely unqualified.
 
For example, in France the Cour de Cassation (Superior Appellate Court) has ruled that, in the absence of further clear and unequivocal evidence, a provisional agreement which dealt with custody as part of a negotiating procedure was insufficient to base a finding of acquiescence. H. c. H., Cass. Civ. 1ère, Bull. Civ. 1992 I n 91, Gaz. Pal. 18-19 novembre 1992, p. 24, D. 1993, 570. See attached summary.

In Germany, the courts have stressed the fact that the burden of proving acquiescence or consent is on the parent who has removed the child. See HC/E/DE 491 [12/04/2001; Oberlandesgericht Köln (Higher Regional Court) (Germany);Appellate Court] 21 UF 70/01. Summary attached.

In Australia, the courts have held that for a parent to acquiesce in the unlawful removal or retention of a child, within Article 13, the evidence of the acquiescence "must be clear and unqualified" Police Commissioner of South Australia v Temple (No.1) (1993) FLC 92-365.

In the United States, the leading case is Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir 1996), in which the United States Court of Appeals set out a similarly strict and narrow test. (Case Attached). The Court held (78 F. 3d at 1064) that:

Acquiescence under the Convention requires either an act or statement with the requisite formalities such as testimony in a judicial proceeding, a convincing written renunciation of rights or a consistent attitude of acquiescence over a significant period of time.

In England, the House of Lords has held that the burden is strongly on the parent who has removed a child to establish consent by the other parent. H v H (Abduction: Acquiescence) [1997] 1 FLR 872. The Court held that:

 Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.

Likewise, in P. v. P. (Abduction: Consent or Acquiescence), [1997] 3 F.C.R. 550, 555 (H. Ct. Fam. Div.), aff'd March 6, 1998 (C.A.)), the English Court of Appeal held that the evidence of consent must "amount to clear and cogent evidence of an unequivocal consent".

The Canadian courts follow the same strict interpretation. See Katsigiannis v. Kottick-Katsigiannis, (Ontario Court of Appeal, Dec. 7, 2000)