CJ v KJ

On 5 August 2005 the Plaintiff father, Mr J, a 30 year old United States citizen living in Connecticut, issued an application under the Hague Convention. He seeks an order that his 4 year old daughter, AJ, born on 12 September 2001, be returned forthwith to the United States. That application is opposed by the mother, 29 year old Mrs J, a UK citizen. AJ has lived with her mother in Wales since October 2004.

The matter came before me on 9 September 2005. Miss Catherine Wood appeared for the father, and Mr Stephen Parker for the mother. I heard evidence from the father, the mother, and a maternal uncle, Mr P. There was insufficient time for counsel to make closing submissions at the end of a vacation sitting. I was due to go on Circuit at the beginning of term. It was agreed that submissions would be made in writing.

Having received them, it was apparent that difficulties remained. I contacted counsel immediately. I highlighted them. I suggested a further oral hearing. Because mainly of my absence on Circuit and listing problems, it could not be further heard until 6 December.

I shall start by setting out the essential background. I limit this to the extent necessary to understand the issues raised by the Respondent mother. They are in brief that AJ was not habitually resident in the United States at the relevant time. Next the father consented to or acquiesced in AJ remaining here. Finally it would expose AJ to grave risk of harm if she were not ordered to be returned. I shall refer to the parties as the mother and father.

The parties were married in Massachusetts in August 1999. They returned to Wales where the mother grew up within a month. They purchased a home in Wrexham, and remained there for 4 years until September 2003. By then AJ was 2 years old.

The father obtained employment in Wales. He stopped in January 2003 because of stress. They decided to return to the United States. They moved there in September 2003. The mother applied to be a teacher and they purchased a home 3 months later in Connecticut.

The mother had in October 2003 applied for a visa to stay in the United States as the wife of a US citizen. This is a long process. It had not been completed by the time that the parties separated in December 2004. AJ’s status was different from that of the mother as she is a dual American and British citizen. She is entitled to reside in the United States. This was not known until after these proceedings were started.

The mother had an immigrant visa (a Green Card). As a result she was only entitled to remain in the United States for a maximum of 90 days at any one time. Because of this and with the father’s agreement, the mother and AJ left the United States 5 times between September 2003 and October 2004. They were in Wales with the mother’s family between the 4^th and 24^th of November 2003, the 5^th and 22^nd of February 2004, the 17^th of May and the 2^nd of June 2004, the 13^th and 27^th of July 2004, and after 23 October 2004. I shall return to the detail of these absences.

With the father’s consent the mother and AJ stayed on in Wales after 23 October. The mother’s sister was to be married on 23 December which the father was to attend. He arrived on 14 December.

Prior to his arrival the parents had been in regular email contact. Some 40 messages have been exhibited. Those sent by the mother are rightly described by her as warm and happy. These messages indicated that she was missing home in Connecticut and wanted to return. She sent the father details of her return flight with AJ on 27 December.

The parties’ relationship broke down shortly after the father’s arrival. As a result he wanted to return early. He was persuaded to stay for the wedding. He went back to the United States on 23 December.

The parties thereafter exchanged messages by telephone and email. The father did not ask AJ or the mother to return. No action was taken until the mother was served with proceedings in August 2005.

It became part of British domestic law pursuant to the Child Abduction and Custody Act 1985. As is well known, it governs the position where a parent takes a child wrongfully from Convention country A to Convention country B or retains the child wrongfully in country B. It is an essential precondition that the other parent in country A has rights of custody and that the child was habitually resident in country A at the time of the wrongful act. If so then the courts of country B must on application return the child forthwith to the jurisdiction of country A for the courts of country A to decide where the child shall live. However the parent who has taken or retained the child can raise limited defences which they must prove. If they do so, the courts of country B have a discretion whether to return the child or not.

The relevant defences arise under Article 3(a) (habitual residence) and Article 13 (consent, acquiescence, grave risk):

“Article 3

The removal or retention of a child is to be considered wrongful where –

(a)

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and

(b)

at the time of removal or retention those rights were actually exercise, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision ……

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

(a)

the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b)

there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation ………”

It is accepted by the parties that, if the father proves that AJ was habitually resident in the United States on 27 December, the mother wrongfully retained AJ in Wales. It is also accepted that at that time the father had rights of custody.

The mother says firstly that there was no wrongful retention of AJ for the purpose of the Convention. This was because AJ was not on 27 December 2004 habitually resident in the United States. She and AJ were only there as visitors with no right to remain. She was habitually resident in Wales. Whilst it was intended that they would reside in the United States, this had not been effected.

Alternatively the mother was habitually resident in both the United States and Wales. At the time she was resident in Wales. In the final alternative the mother had no habitual residence at the relevant time. In short whatever view is taken she was not habitually resident in the United States.

The father disputes this. The parties intended to remain in the United States. They had taken all practical steps necessary to achieve their intention. They had been there for an appreciable period. The absence of the necessary visa for a permanent stay is no bar to the acquisition of habitual residence.

Secondly the mother says the father consented to AJ’s retention in North Wales. The father had agreed the marriage was over and that AJ would remain with the mother wherever she was. This and the father’s acceptance that AJ remain before he left is clear and unequivocal evidence of his consent.

The father says there was no clear consent. An agreement if proved that a child would stay with one parent should they separate is not consent to an unlawful retention. He did not consent prior to leaving Wales that AJ should remain there.

Next the mother says the father acquiesced in AJ remaining in Wales. Looking at all the conversations and messages between the parents, this is clear. Alternatively the father led the mother to believe that he was not going to seek her summary return.

The father does not accept that he ever acquiesced in the mother’s retention of AJ. He asked her to return with AJ. Even if he did not, his messages show no acquiescence. He was trying to obtain legal advice about the mother’s abduction of AJ which he acted on when it became available. In any event, it cannot be said that it would be inequitable for him now to seek AJ’s return.

Finally the mother says that it would expose AJ to a grave risk of physical or psychological harm, or otherwise place her in an intolerable position to order her return. Even if the father provides properly for her to live with AJ in the United States pending a determination by the courts there of where AJ should live, that does not meet this defence.

The father says there is no case made out on grave risk. In any event he is prepared to give undertakings to ensure the mother can return with AJ pending a decision of a United States court.

I turn to the recent history bearing in mind the Articles to which I have referred and the defences raised. Unless it otherwise appears, what follows represents my findings of fact.

The father’s case is that before his arrival in Wales there had been no difficulties in the marriage. The mother then instantly distanced herself from him. He realised the marriage was over and he returned to the United States on 23 December. The mother and AJ remained in Wrexham. He said in his affidavit in August 2005 –

“My wife has rejected my entreaties to return to our home with AJ. I consulted several attorneys, the tenor of whose advice was there was really nothing I could do but accept the situation. None told me of the Hague Convention of which I only learned in June 2005.”

The mother says, and I accept, that they had a heated discussion about the marriage in July 2004. It was on first sight of the father when he came to Wrexham on 14 December that she knew the marriage was over. During previous conversations I find they had discussed what would happen if they ever separated. They had agreed that AJ would remain with her. This meant Wales because she had no right to permanent residence in the United States as the father knew.

On 18 December the maternal grandfather, Mr Rogers, I accept had a long conversation with the father. The father’s attitude was that the marriage was over and there was no point in his staying. Mr Rogers encouraged him to stay and fight for the family. He agreed to stay for the wedding. He did not mention taking AJ with him.

Later Mr Phillips, the mother’s brother-in-law, followed the father when he left the same evening. He was aware that the mother and AJ were upset. Mr Phillips persuaded him to stay with them. He told him that he had a right to decide whether AJ stayed with him or went with her mother that evening. The father said that he wanted AJ to go with her mother.

Mr Phillips passed this on to the mother. As did Mr Phillips when later the father told him that he would be pursuing his idea of working for a PhD. Their house was too big for one person and he would be asking his brother to move in.

On 23 December the father left. He was very dramatic with AJ though the mother assured him he would see her again. He declined to stay for Christmas.

The father telephoned the next 3 nights when AJ was in bed. He was calm and matter of fact. The mother sent the first email on 30 December. There are over 20 messages between them in the period to August 2005. She said she had tried phoning him in January but he had changed his number.

The mother was unable to telephone the father for about 2 months. The father later complained that the mother had moved addresses in North Wales without telling him where she was going.

The father did not respond by email until 22 January by which time the mother had sent him some 12 messages. They exchanged further messages until the mother was served with the present proceedings in August 2004.

Rather than leave the parties in suspense, I will at this stage set out the decision I reached at the end of this judgment. I find that AJ was with her mother at the relevant time habitually resident in the United States. The mother has proved that the father consented to the unlawful retention of AJ. She has also proved that he acquiesced.

The mother has only established grave risk in one limited area. Given the time and the extent to which AJ has settled in Wales and the nature of the defences proved, I exercise my discretion not to order her return to the United States.

The written arguments are based on the proposition that because AJ was always with her mother, their habitual residence is the same. The parents were married. They had equal rights of custody. During the relevant period from September 2003 to December 2004, the father was permanently in the United States. The mother and AJ’s stay was interrupted by the 90 day rule as I have set out.

She and AJ were visitors not lawful residents. The parents considered that neither she nor AJ had the right to remain in the United States. The mother could not work there nor own property. The intention was for the mother to become habitually resident in the United States. This had not happened by December 2004.

Alternatively AJ had 2 places of residence, namely the United States and Wales. When AJ was retained, she was habitually resident in Wales. Finally there can be a situation where a person has lost one habitual residence and not yet acquired another. This applies here. AJ would therefore have not habitual residence. Each of these positions it is accepted would defeat the father’s claim.

He was ordinarily resident in the United States from September 2003 and habitually resident by December 2004. The mother was also habitually resident in the United States by December 2004. She cannot unilaterally alter AJ’s habitual residence which remained in the United States even if hers ceased.

Miss Wood on behalf of the father submits that the stay in the United States had all the marks of a change for the family of habitual residence. She highlights the following matters which are not in dispute:

I am satisfied that the parents moved to the United States in September 2003 with the settled intention of making it their permanent home. No other intention is consistent with the parties’ actions before and after their arrival. Nor is it consistent with the sentiments expressed by the mother in her emails to the father between October and December 2004. These are not disputed by her.

The main question under this heading, provided a sufficient time has elapsed, is therefore whether the following factors prevent the mother acquiring habitual residence -

On the first point the precise arithmetic is not conclusive but it is a helpful guide. Until the mother and AJ returned to the United States on 23 October 2004 they had been away from Wales for 401 days. Of those, 300 days or ¾ qtrs of the time was spent in the United States. By 27 December 2004 when the mother and AJ failed to return, the percentage of time they had spent in the United States had reduced to just under 2/3rds.

I start with the relevance of immigration status and the case of Shah v Barnet London BC (1983) 2 AC 304. The case concerned foreign students who had been studying for 3 years in the UK under a visa restricting their stay to the completion of their studies. The question was whether, given their status and the limited purpose of their visit, they were ordinarily resident in the UK.

The decision of the House of Lords is to be found in the speech of Lord Scarman. He said at p.344:

“The ordinary and natural meaning of the words supplies one. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.

An attempt has been made in this case to suggest that education cannot be a settled purpose. I have no doubt it can be. A man’s settled purpose will be different at different ages. Education in adolescence or early adulthood can be as settled a purpose as a profession or business in later years. There will seldom be any difficulty in determining whether residence in voluntary or for a settled purpose: nor will inquiry into such questions call for any deep examination of the mind of the ‘propositus’.”

Later at p.348 he added:

“Both courts also agreed in attaching decisive importance to what the Divisional Court called ‘the immigration status’ of the students. ‘Immigration status,’ unless it be that of one who has no right to be here, in which event presence in the United Kingdom is unlawful, means no more than the terms of a person’s leave to enter as stamped upon his passport. This may or may not be a guide to a person’s intention in establishing a residence in this country: it certainly cannot be the decisive test, as in effect the courts below have treated it. Moreover, in the context with which these appeals are concerned, i.e. past residence, intention or expectations for the future are not critical: what matters is the course of living over the past three years …………..

The relevant period is not the future but one which has largely (or wholly) elapsed, namely that between the date of the commencement of his proposed course and the date of his arrival in the United Kingdom. The terms of an immigrant student’s leave to enter and remain here may or may not throw light on the question: it will, however, be of little weight when put into the balance against the fact of continued residence over the prescribed period – unless the residence is itself a breach of the terms of his leave, in which event his residence, being unlawful, could not be ordinary.”

In al Habtoor v Fotheringham 2001 1 FLR 951 Thorpe LJ, referred to another speech of Lord Scarman in Akbarali v Brent London Borough Council (1983) 2 AC 309 at p.343 where he had said –

“Ordinarily resident refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration ……… all that the law requires is that there is a settled purpose. This is not to say that the ‘propositus’ intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period.”

Thorpe LJ having cited that and other authorities, said -

“Those 3 examples do, in my opinion, make good his submission that habitual residence may be acquired despite the fact that the purpose of the move was intended to be fulfilled within a comparatively short duration or, as in the case of re B, the move was only a trial basis.”

He cited the judgment of Millett LJ as he then was in re M (Abduction: habitual residence) (1996) 1 FLR 887. He stated that the question whether a person was or was not habitually resident in a particular country is a question of fact. Millett LJ went on –

“Whilst it is not necessary for a person to remain continuously present in a particular country in order for him to retain residence there, it is not possible for a person to acquire residence in one country while remaining throughout physically present in another.”

I have been referred to the decision in Kapur v Kapur 1984 FLR 920. The question was whether a husband had acquired habitual residence in England. He had been admitted as a student and granted restricted leave to remain in the UK. It was extended annually whilst he was here. It was argued for the wife that he could not be habitually resident here because he only had a restricted right to remain.

Bush J. held that this argument was irrelevant once the words “habitually resident” were given their natural and ordinary meaning. It was “in the sense that habitually means settled practice or usually, or, in other words the same as for ordinary residence – a voluntary residence with a degree of settled purpose”.

I have also been referred to Re: F (A Minor: Child Abduction) (1992) 1 FLR 548, Re: V (Abduction: Habitual Residence) (1995) 2 FLR 992, and M v M (Abduction: England and Scotland) (1997) 2 FLR 263. From the authorities I draw the following conclusions:

Applying that approach to the facts here, I am satisfied that both parents had in September 2003 a settled intention to make their home in the United States. Their actions within a few months of arrival confirmed that intention. This lasted until the mother indicated a different intention in December 2004 namely to remain in Wales. Before that there was nothing to suggest any change of intention.

The mother’s status in the United States as a visitor who had applied for permanent residence required her to leave the United States every 90 days. She took advantage of this to spend time in Wales with AJ in the company of her family. By the time of her final departure from the United States in October 2004 she had been absent on 5 occasions for 101 days in 13 months, an average of 20 days at a time. She had however spent ¾ qtrs of the time in the United States.

I am satisfied that there was clearly the necessary intention. A period of over 1 year is sufficient to amount to an appreciable time and the contrary has not been argued. The mother’s status in the United States as a visitor does not prevent her acquiring a domicile of choice there provided there was a clear intention. The same might well apply if she had been a student.

Habitual residence is not lost by temporary absences provided they are not inconsistent with that concept. In this instance it is significant that they were only undertaken to advance the primary intention of obtaining a permanent residence in the United States. In total they are not in conflict with the acquisition of habitual residence especially given their purpose.

Finally the period from 23 October to 28 December does not invalidate those conclusions. It was a sensible and understandable agreement reached solely because of the wedding of the mother’s sister on 23 December. The father came and attended the wedding as well.

If AJ’s habitual residence was on 27 December 2004 dependent on that of her mother, then I find that she was habitually resident in the United States. If it was dependent on that of her father, that habitual residence is even stronger. He had a right to reside permanently and did not leave the United States until 14 December 2004.

In Re: V (Abduction: Habitual Residence) (1995) 2 FLR 992 Douglas Brown J. had to consider the habitual residence of Greek children. Their parents had for 10 years lived 6 months of the year in Greece and 6 months in London.

He cited the decision of Waite J as he then was in Re: B (1993) 1 FLR 999 where he said:

“1.

The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.

2.

Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.

All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.”

Douglas Brown J. went on to say “it is possible …….for habitual residence to change periodically if that is the intended regular order of life for the parents and children”. That is what he held had happened in that case.

It was not the intended regular order of life for the mother and AJ. It was a short term expedient to enable the mother’s naturalisation papers to be processed. Once that was completed the absences would cease. It does not establish habitual residence in 2 different places.

It is possible for a parent to have no habitual residence (see Al Habtoor v Fotheringham (2001) 1 FLR 951). In my view the family’s habitual residence was lost when they left for the United States in September 2003.

A year later when the mother returned to Wales for the last time, steps had been taken to settle in the United States. All that was not yet achieved was the right for the mother to remain there permanently. Her absences do not detract from the acquisition of a new habitual residence. There is no room here to find that an absence of any new habitual residence arises.

The essential steps for the acquisition of habitual residence are there. They are the settled intention, the steps in implementation, and the length of time.

I am therefore satisfied that in December 2004 AJ was habitually resident in the United States. This is clear if her habitual residence is that of the mother. It is clearer if it is that of the father.

This issue has been debated. A husband and wife can have separate habitual residences. An example might be one spouse selecting a new home and working in a new country to which for a significant time that spouse had moved with the intention that they both move there. The marriage ends before the remaining spouse arrives in the new country. It is arguable that each had by then a separate habitual residence.

That is not the position here. There was a joint intent with a significant time being spent by the mother in the United States. Furthermore she cannot unilaterally alter AJ’s habitual residence.

Consent is relevant not to the wrongfulness of the mother retaining AJ in Wales but, if proved, for the purpose of invoking the court’s discretion pursuant to Art 13 of the Hague Convention. It has to be clear, unequivocal, and informed consent (Re P (Abduction: Consent) 2004 2 FLR 1057).

Mr Parker relies on the fact that the father accepted in December 2004 that the marriage was over. The father had already agreed that AJ would remain with the mother in whatever country she was in. Accordingly he consented to her remaining here when they effectively split up.

I return to the evidence of Mr Rogers and Mr Phillips which I accept. It is clear that both wanted the father to put up some opposition to the mother’s termination of her relationship with the father.

As Mr Phillips said in evidence he asked the father on a number of times whether he wanted AJ to stay with him. The father took time to answer this before he said that he wanted AJ to go with KJ that night. It was obvious in the circumstances that whatever he replied was going to be passed on to the mother. It was also obvious to him that the mother would not be returning with AJ on 27 December.

I accept that it was an emotional time for the father. But he was not in a situation where he was being put under any pressure to allow AJ to stay with her mother. It was quite the reverse. The father knew that he was returning to the United States. He knew by then that the mother and AJ were not. It was why he was as the mother describes so dramatic with AJ on the evening prior to his departure.

In his second affidavit he referred to the flights booked for the mother and AJ to return on 27 December 2004. He said this –

“With hindsight I cannot say whether I expected or only hoped them to return on that flight but I certainly hoped that back in our own home together and without the hostility of my wife’s family we should be able to resolve our difficulties.”

Having heard the father give evidence, I am not satisfied that that is a correct account. Far from being hostile, the mother’s family were supporting him and hoping that he would put up a fight against the mother.

He knew the marriage was at an end. He knew that the mother was not going to return with AJ voluntarily to the United States. He made it quite clear to Mr Phillips contrary to his and Mr Rogers wishes that he was not going to fight the position. He indicated in positive language that AJ would remain with her mother that evening and how he was changing his plans for the future by studying for a degree and asking his mother to come to stay as their home was too big for one.

The father rang on the 3 successive evenings. He did not ask if the mother was returning with AJ. He did not then or on any other occasion for the next 8 ½ months suggest that this was without his consent.

In his message of 25 April the father wrote complaining of not having been able to speak to AJ for 3 weeks. He said he had the right to be in contact with her. He complained of lack of pictures of her. He said that if something was not done soon he would get a court order. The clear inference is that he was concerned about lack of contact.

He then accused her of having no idea what she was talking about in saying that the situation was best for him. He went on –

“You are the only person I know who can take a child away from a loving father, move her away from a situation where she was able to spend more time with her mother and less time with other carers and say that that somehow was best for her……….. You haven’t just hurt me and you haven’t just taken AJ from me. You have taken her from other grandparents, her uncles, and friends and neighbours who have all cared about her and loved her. You have no clue as to the upset and heartbreak you have caused by the decisions you have made.”

I find that the parties had spoken earlier about the prospects of separating. The relationship was under strain because of the effect of the stress from which the father had suffered for some 2 years. There was an agreement then that if they did separate AJ would remain with the mother. This was something they had discussed many times as the mother said.

The father did not in December 2004 want a separation. He was not prepared to oppose it, despite efforts by the mother’s family to make him do so. He knew AJ and the mother would remain in Wales if he did not object. He left without raising any dissent. He went along with the agreement they had made and of which he was well aware. It explains why he stated before he left his plans for the future without the mother and AJ. It also explains his emotional behaviour with AJ on the eve of his departure.

In Re: C (Abduction: Consent) (1996) 1 FLR 419 Holman J. said –

“If it clear, viewing a parent’s words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Article 13. It is not necessary that there is an express statement that ‘I consent’. In my judgment it is possible in an appropriate case to infer consent from conduct.”

In Re: K (Abduction: Consent) (1997) 2 FLR 212 Hale J., as she then was, had to consider the position of a mother to whose departure he consented when she said there was only a 50/50 chance of her returning. He soon afterwards indicated he was not happy with it.

She held that this was sufficient to amount to consent “and that the consent is not taken away by the father subsequently thinking better of it. Having had that consent, the mother was entitled to rely upon it in making up her mind and keeping C in this country”.

The father did change his mind here a month or so later. He did not inform the mother of it. Even if he had, the mother was entitled to rely on the earlier consent. His outburst in April which I set out represented the hurt he felt at the time. It is not inconsistent with consent rather how painful it was. If it was inconsistent it was by then too late; the mother was entitled to rely on the earlier consent.

There was an agreement about the parent with whom AJ would live should they separate. In December 2004 there was a separation. It was also an unlawful retention by the mother.

The father knew of the agreement. He knew of the mother’s intention namely to stay in Wales with AJ. He was under pressure not to accept that situation. He did so knowing full well what the consequences would be, telling the family how he would organise his life in the new situation. I find that by his actions and words he consented to the mother’s unlawful act.

The father in his first affidavit said that the mother rejected his entreaties to return to their home with AJ. In his second affidavit he said that he repeatedly begged her to return with AJ but she refused. He also said he did not know whether he expected or only hoped them to return on 27 December.

I do not accept those contentions. It was not repeated in his oral evidence. He accepted he had not directly asked the mother to return with AJ or to return AJ. It is however an insight into the father’s thinking that he now believes he did say this.

I am satisfied he knew the mother would not return and AJ would not be sent over without her. I have set out my conclusions on consent.

It is now necessary to consider the position after 24 December in more detail on the issue of acquiescence. In this it is important to note problems which the father had in maintaining telephone contact with AJ. The mother stated in evidence that the father was wishing her good luck at one moment and then out of the blue she was served with proceedings.

The questions which arise are firstly whether the father did in fact agree to AJ staying in Wales. If that was not so, had she been unequivocally led by him to believe he was not going to claim AJ’s summary return such that it would be just to hold that the father had acquiesced?

The background is to be found in the telephone calls and email messages between the parents, and their written and oral evidence. In the event I am wrong about consent I consider the defence of acquiescence.

I find that the father was shocked when he learned from the mother that the marriage was over. Despite pressure from the mother’s family he would not at that time try and save the relationship. His first thought was to return home. He was persuaded to stay for his sister-in-law’s wedding.

He had by then arranged for a return flight to be financed by his parents. He did not ask nor expect the mother or AJ to go with him. Equally he knew they would not use their return flights on 27 December.

He gave a clear view to the mother at the time. It was not his wish to end the marriage but he consented to the situation. He was not prepared to fight. He spoke of how he was planning his life in the United States on his own. He never asked the mother to come back or to send AJ back contrary to his written assertions. When he rang on the 3 days after his return it was to ask how AJ was not to seek her return.

Thereafter the main communication was mostly by email. The pattern of their messages can readily be seen. The first 12 are from the mother. The father did not respond until 22 January 2005.

The mother included in her first email on 30 December a query about whether the father had done anything about the house. The inference is that it was to be sold and the mother was to receive part of the proceeds. She continued to raise the topic in her next 2 emails.

There was then a phone call from the father indicating he was not selling anything. The mother in her next email on 16 January felt this to be unfair. He had told her nothing of his plans. She explained that she had put her name on the council list for housing but with a little money she could get a private place for her and AJ.

She complained in her next few emails of lack of response from him. She said he would be hearing from her solicitor. This related to finances.

She knew he was angry and upset. She did not know why he was not interested in AJ. She had tried contacting his parents and his work. The first email from the father on 22 January refers to a telephone call the previous day. In that phone message it is accepted that the father had told the mother he was going for full custody of AJ.

He said in his next email that the mother did not want to talk about AJ. He wanted to know how she was doing. He did not want her phoning his family or work. The mother responded telling him about AJ. She complained about the father changing his number because AJ wanted to speak to him. She said he had threatened her with full custody. He had cut her off. She concluded that there would be no dialogue between them. She repeated what she had said to his father, that she wanted his family to remain in contact.

After that response I find the father rang the mother. He explained that he did not mean he was seeking full custody. “I would not do that to you” he said. His lawyer had told him to say this but all he wanted was contact. Whether this was said because he hoped for a reconciliation or not, he made it clear to the mother that his interest in AJ was limited to contact.

After that call the father said in an email on 23 January that he felt better than he had since “things started to go pear-shaped in December”. He had not given the mother his new telephone number.

On 7 February the father said he was sorry it had taken so long before he had got back to her – he did care for her and AJ. He had AJ’s DVDs ready to be sent. He then explained his future plans. He was going back to college, taking exams in June, and applying for college in October. He hoped things were going well for her.

In March there was a further exchange of emails. The mother explained how AJ was doing. The father was pleased to hear this. He said he was starting a new job in April. The mother wished him luck.

He informed her on 12 April that he had been to see a lawyer. If everything was agreed it would cost them $1,800, or $5,000 if they did not. This was about the divorce and settling finances. He said he did not think she was entitled to as much as she thought. It was not too late for her to change her mind. He explained how things had improved for him.

He went on –

“So if you decide to continue to stay there, I understand. But when you look back just remember that I was willing to give you and us another chance – for our sake and AJ’s. I know AJ must miss her daddy ……… I would even be willing to wait until your visas were done first – and that way you could work anywhere and wouldn’t have to worry about flying back and forth all the time. All I ask is that you at least consider what I’ve said ………”

There was then a telephone call or an email which is missing judging from the father’s next email of 25 April. The mother must have rejected the father’s offer of a reconciliation, saying that the situation was best for him and for AJ. The father was upset by this.

He started by complaining that he had not been able to speak to AJ for 3 weeks, nor seen any art work or pictures of her. He said that she had taken AJ from him. She had spent a lot of time trying to rationalise what was best. I have set out an extract from this message at paragraph 80.

She saw the world from a selfish point of view. She was criticising him and his friends. She would have to send someone to represent her on the divorce. His view was that with them not agreeing it would cost more like $5,000 plus.

The mother answered at some length 2 days later. She assured him he could speak to AJ and gave times when he could do so. She would send pictures. He was not a supportive father because he did not give his new phone number for weeks. He also took her Child Family Allowance. She responded to his criticism. She asked for AJ’s DVDs promised in January.

The father replied. He wondered if she honestly believed what she said. He gave some details of finances emphasising that his family were as attentive as hers. He would not be making arrangements to call AJ. He could do so when he wanted. He had the right to know her address. If she did not get a home phone he would get a court order.

She chose this situation not him. She knew she was going to struggle financially from the beginning. She was brought up to look after parents, no doubt AJ would be similarly trained. Some day she would learn to be an adult.

There seems to have been no further communication until the mother told the father on 7 May that she had tried to phone on 2 Saturdays. She was at her parents and he could call. Again there was a further silence until the mother sent pictures and art work on 18 June. She gave information about AJ. She had tried to call him. They needed to talk and AJ would like to speak to him. She hoped his new job was going well. She had had a big promotion to Head of Year.

She contacted him again 3 days later asking him not to take money out of the joint account. On 14 July the father asked for their passports to sort out tax for 2004. They spoke about this as the mother wanted assurances.

The emails in August concern the father speaking to AJ. He was not happy with the difficulties over this, nor that, as he claimed, he had not had her address for about 6 months. She had been untruthful in saying he could always have contact. The mother responded. She had given him the address some time ago. The telephone line had not been installed yet.

The mother said he had not made a big effort to contact AJ. She gave him her mobile number accepting it would be expensive. The father had by then instigated proceedings. They were served on the mother sometime after 5 August. There was no prior warning.

The mother told the father how upset she was by his action. It would be awful for AJ. She was so reliant on her mother. She was excited about going back to school and had a real routine. The mother wanted to talk to him about it. Proceedings were then served on her.

The classical statement of the principles involved is to be found in the speech of Lord Browne-Wilkinson in re H (Abduction: Acquiescence) 1997 1 FLR 872 where he said this –

“1.

For the purposes of Art 13 of the Convention, the question whether the wronged party has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in re S (Minors) ‘the court is primarily concerned, not with the question of the other parent’s perception of the applicant’s conduct, but with the question whether the applicant acquiesced in fact’.

2.

This subjective intention of the wronged parent is a question of fact for the trial Judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

3.

The trial Judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

4.

There is only one exception. 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.”

The question of the father’s knowledge of his rights are important. In re S (Abduction: Acquiescence) (1998) 2 FKR 115 a mother abducted the 1 year old son from Australia. The father’s first solicitor did not discuss the Hague Convention with him and appeared not to know about it. He contacted a second solicitors four months after the abduction who did discuss the Hague Convention but told him that the Australian courts would be likely to allow the mother to return to the UK, it would therefore be a waste of time. It was only after contacting third solicitors in September 1997 that the father issued proceedings.

In the course of her judgment Butler-Sloss LJ, as she then was, said at p.122 –

“In the present case however the extent of the father’s knowledge of his rights is in my view crucial to the consideration of acquiescence and whether he formed the subjective intention to agree to the child remaining in the UK. In earlier decisions of this court the lack of knowledge and misleading legal advice have been considered relevant factors to which the court should have regard ………. In re AZ (A Minor) (Abduction: Acquiescence) 1993 1 FLR 682 this court held that it is not necessary, in order for the defence under Art 13 to succeed, to show that the applicant had specific knowledge of the Hague Convention. Knowledge of the facts and that the act of removal or retention is wrongful will normally usually be necessary. But to expect the applicant necessarily to have knowledge of the rights which can be enforced under the Convention is to set too high a standard. The degree of knowledge as a relevant factor will, of course, defend on the facts of each case.

In the light of the incorrect legal advice given to the father in January 1997, it would be difficult to treat the attempts to seek agreement on contact and the sending of the belongings to the mother as evidence supporting acquiescence. ………. Once the father was given the relevant advice in April/May 1997 and did acquiesce in the retention of M by the mother, as I believe he did, his subsequent change of heart for whatever reason in September 1997 is irrelevant, since acquiescence had already taken place. Acquiescence is not a continuing state of affairs and, once given, cannot be withdrawn, see re A above.

It is significant, in my view, on the issue of acquiescence, that the Judge found that the father did not ask for M to be returned even after April 1997 until he issued the Convention application. Further, it has never been suggested in any of the documents before us that the father has asked or will ask to take over the care of M himself.”

I have referred in outline to the subsequent telephone calls and email messages between the parties after the father had returned to the United States. There is nothing in the telephone calls from the father and the first 12 email messages from the mother to suggest other than that they were treating the relationship at an end and that AJ was remaining with her in Wales. Her concern was both in relation to the financial consequences and the father’s lack of contact with AJ.

He did not ever ask the mother to return AJ or that she should come back with AJ. He was aware from the emails and telephone calls that the mother was getting on with her life in Wales with AJ. It was also clear to her that the father was agreeing to this.

In January she explained how she was making plans by having her name put on the council housing list. She set out how with a little money they could obtain a private place. This is consistent with her claim to recover her money which had gone into the purchase of their home in Connecticut.

There was a telephone conversation about 21^st January when the father said that he was seeking full custody. When the mother queried this I find that he explained that this was not his true intention. He would not do that to her. It was only because he had been advised that this was the way to obtain contact. It was a pretence soon explained. There is therefore nothing to show that the father was ever asking that AJ should return to the United States.

The father’s account is set out in his second affidavit of August 2005. At paragraph 15 he said –

“About the 15 February 2005 I went to the local police to ask if they could help: the answer was no. They did not mention the Hague Convention. On about 16 April 2005 I had an appointment with a local Family lawyer, Richard O’Neill. His advice was to the same effect and he did not mention the Hague Convention.

In May 2005 I contacted a Family lawyer, Cecil Gerstene in Connecticut. She told me that the case being an international one was beyond her expertise but did mention there was an internationally enforced Convention. She told me of another lawyer, Steve Dembo.

I was able to meet Steve Dembo on 16 June 2005 when it was clear he still needed to do more research on the Hague Convention and was unable to say what I ought to do. I met him a week later with my father when it was clear I needed the advice of a lawyer with more international experience. Through an attorney in the State of Connecticut Attorney General’s Office I was introduced to 3 other lawyers. The first two, who practised together, merely said they would help me by identifying another lawyer. The third was an immigration lawyer who could not help in terms of a custody dispute but suggested I contacted the State Department. This conversation was on 9 July 2005 when I learnt for the first time that my daughter was a citizen of the United States of America.

On 9 July 2005 I spoke to Ms Barbara Greig in the State Department who explained the Hague Convention to me. I immediately started getting the documents that she had advised me to do. My application under the Convention is dated 21 July 2005.”

The father has exhibited letters from lawyers whom he consulted in the United States. The first, Mr Graham said in a letter September 2005 that the father had consulted him in early January. “Mr J was experiencing marital problems and the wife had taken his daughter from the residence at which they were staying in Wales for the holidays. Initially I advised that he not aggressively pursue legal action, to allow time to attempt a reconciliation”.

Mr Graham went on to say that, when the matters had not been resolved amicably by 21 January, he gave him the name of other lawyers in the State. The father went on apparently to make enquiries of a further 17 before finding one who was willing to undertake an international case.

The father’s intentions at the time are shown as well by the email from his parents of 21 January 2005. He had by then been back in the United States for over 3 weeks.

They sought a recommendation for a family attorney for their son from Mr Graham. The mention the home and the car being in his name. The mother was pestering him about money. She did not want to return nor did she ask for the father to live in Wales. There is mention of AJ and the complication of the international issue.

I am satisfied that it was on the question of finance that advice was being sought. The possible return of AJ did not feature at that time.

It was however within a short time the subject of a conversation with Mr Barr-Stephens. He was a Director of Family Services. In January or February the father raised with him the question of international child abduction. He referred him to 2 lawyers. The father’s quest to find a lawyer who knew this area of law started about then.

I find that the father’s first contact with lawyers was because of his wish to protect himself financially. Whatever wish he had for a reconciliation was only mentioned in April. Though he mentioned custody in January that was a pretext for achieving contact as he explained.

There came a time when he changed his mind. Having consented and acquiesced in the mother’s retention of AJ he decided he did want AJ to return. He did not communicate this to the mother.

I have to determine as best I can the father’s subjective intention during and after December 2004. He was shocked as I have said when the mother indicated when they were both in Wales that their relationship was at an end. He was not prepared to dispute the situation.

I find he knew the mother intended to remain in Wales with AJ. She would not be returning on 27 December. He accepted it. Before he left he had begun to make plans for a future without the mother and AJ. As he said at the time, there was a chance to work for a PhD. His brother would move into his house which was too big for one person.

Thereafter, even when he was thinking in different terms, the father said nothing to suggest any change of mind to the mother. His statement on 21 January that he was seeking custody was as he explained within a few days not a reality – all he wanted was contact.

He never mentioned the mother returning to the United States, he never asked for AJ to come back. His express interest in AJ was speaking to her, having contact with her, and knowing where she was living in Wales.

He went further. He actively encouraged the mother to believe that he accepted the situation. This was his initial reaction when he was planning his future before he left.

It continued. In February he told the mother that he was taking exams for college in May, and applying for college in June. There was I am satisfied a clear inference that these plans did not involve the mother and AJ. He hoped things were going well for her.

As he knew the mother too was planning for the future as well in Wales. She told him of putting her name of the council list, and how with a little money they could obtain a private place. She spoke of her subsequent move, of AJ’s continued progress at school, and her promotion as a teacher. The father expressed his pleasure at AJ’s progress in April and said he was starting a new job.

This was not all. It was in April that he offered a reconciliation. But its terms were clear “so if you decide to continue to stay there, I understand”. He wanted her to remember however that he was willing to give their relationship another chance.

The mother declined the offer. It riled him when she said she thought it was for the best. He pointed out that it was she who had taken AJ from him. Even then, knowing as he had done from an early stage, that it was wrong, he did not ask for AJ to return. The only threat of court action was to obtain her telephone number.

The father knew of course the essential facts. He came to the conclusion from about late January that the mother’s retention of AJ was wrongful. He described it as abduction. What he did not know until later was the Hague Convention and the means to enforce what he knew to be wrong.

In the meantime, aware that the mother had acted wrongfully, he not only went along with the position, he actively encouraged her to get on with her life with AJ as he was getting on with his. His later message was clear – separation had been painful for him, it was not for the best, but he understood if she decided to stay. By then he had acquiesced.

That conduct, knowing of the mother’s wrongful act, was clear and unequivocal. It was expressed over an extended period. It was that he was not going to assert any right to claim AJ’s summary return. It would be in my judgment inequitable now to permit him to do so, especially when he had encouraged the mother to implement plans for her and AJ’s continued stay in Wales.

If I am wrong about consent, I conclude that the father had by his actions and words in December 2004 and afterwards led the mother to believe he would not enforce his right to claim AJ’s return. He knew the facts. Though he had consented at the time he did nothing to inform the mother. He positively led her to believe the contrary though he knew it was a wrongful retention by her.

Therefore, though within 1 to 2 months or so he no longer acquiesced subjectively, it was by then too late. Even if it was not, his failure to communicate his change of mind and his active encouragement of the mothers stay means that justice requires the court to hold that he has acquiesced. And I do so hold.

The arguments put forward by Mr Parker are that the mother has incurred a loan of £10,000 to meet the expense of the hearing. She is in rented accommodation. AJ is now in school where she has made friends.

If AJ is ordered to return to the United States, the debt cannot be paid off. The accommodation will be lost. AJ will have no school to go to till she is 5 and will lose her friends.

All these are misfortunes. They do not however expose AJ to grave risk save the natural upset to her mother caused by having to return to the United States contrary to her wishes. This is not an exposure of AJ to a grave risk of psychological harm provided her mother is with her.

But that is not the end of the matter. A letter from a lawyer indicates that the case may take up to a year before it is concluded.

AJ has never lived with her father. She has lived solely with her mother since October 2004. Before that she was alone with her mother for all the visits to Wales, a total of over 8 weeks. She was her primary carer.

The father has proffered undertakings. Miss Wood has argued that it is not for a mother who has acted unlawfully to quibble with the adequacies of undertakings if there is no case proven of grave risk. I see the force of the argument.

But the question has not been determined whether the mother could remain in the United States for the period required up to and shortly after any court hearing. That would be necessary to see if she could obtain permission to live in Wales with AJ.

A letter from the United States Department of State says that, in a Hague Convention case, a parent may be paroled into the United States for a limited time. They first of all have to apply to an appropriate Embassy for a visa. If that is refused then they can apply for parole.

Amongst the information required before it is granted are the scheduled court hearings. It says that most parole request cases will be decided within 2 or 3 weeks and favourably. It raises the question of whether parole would be granted if the mother could only apply once she is in the United States for court hearing dates.

There would need to be a binding permission from the United States Immigration Service that the mother could remain for the time of any hearing and any appeal thereafter. If she was refused parole or obliged to leave before the end of proceedings and could not take AJ with her, I am satisfied there would be a grave risk of AJ being caused psychological harm. The separation from her main carer and her sole carer for the last 14 months would cause this.

The father offers a home, use of a car, the cost of household bills and $75 per week. I suggested to Miss Wood that the maintenance was an unusually low figure. I do not know the means of the father. The mother cannot work. I would regard the sum offered as too low a sum to provide the basics for modest living for the mother and AJ.

This is provided by the wording of Article 13. The court is “not bound to order the return of the child” if consent, acquiescence, or grave risk is proved. I am satisfied that this applies here.

The father consented to AJ’s retention here and then actively encouraged the mother to re-establish her life with AJ in Wales. That she has successfully done and AJ has flourished as a result. It would not be right after more than a year suddenly and abruptly to bring that to an end with all the upset, distress, and loss it would cause in the light of the father’s conduct.

Furthermore the need for the mother to apply for a visa, wait for acceptance or refusal, then have to apply for separate permission to enter means more delay in circumstances of uncertainty. I take this into account. The remedy is intended to be a summary one. For all these reasons and the circumstances of the case I exercise my discretion to refuse to order AJ’s return to the United States.