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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) |
Hague Convention:
Consent & Acquiescence
by Jeremy D. Morley
The High Court in England
seems to have made it far easier for a
child-abducting parent to prove the defenses of
consent and acquiescence in a Hague Convention
child abduction case than has previously been
the case.
In CJ v KJ [2005] EWHC 2998 (Fam),
Mr. Justice Sumner accepted the evidence of the
mother, who had refused to return the parties’
4-year old daughter to their home in Connecticut
after a Christmas visit back to the parties’
original home in Wales, that the father had said
that if they were ever to divorce she would get
the baby and he would be left with the dog. The
judge used that, plus the fact that the mother’s
pending application for permanent resident
status in the U.S. had not yet been approved, as
key evidence to establish that the father had
consented to the mother’s taking the child from
Connecticut to Wales and keeping her there.
Another factor of great significance was that
when the father had arrived in Wales and the
mother had told him that the marriage was over,
he broke down and became extremely passive.
While the mother's parents advised him to fight
to save the marriage, he had failed to take
action and had returned to Connecticut in a
state of great shock and upset. Once back home
he had consulted a series of lawyers but they
had advised him to attempt to reconcile with his
wife rather than threaten litigation.
Accordingly he did not aggressively demand the
child’s return.
These were the key facts that were led the Court
to hold that he had consented to the retention
of his child in Wales and subsequently
acquiesced in the retention.
In our opinion, the result was extremely harsh,
and should be overturned on appeal, but we are
admittedly biased since we have provided
litigation advice to the father.
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