Family Law Hub

H, R and E (Children) [2013] EWHC 3857 (Fam)

Application under the Hague Convention for the summary return of three children from this country to the Netherlands. An order was made for the return of the children to the Netherlands within 14 days.

  • In brief: The father ("F") applied under the Hague Convention for the summary return of three children to the Netherlands. In opposing the return, the mother ("M") argued that F had consented to the removal of the children pursuant to Article 13a Hague Convention; that subsequent to the removal F had acquiesced to their living in this jurisdiction pursuant to Article 13a and, finally, that the children would be at grave risk of harm and/or would be placed in an intolerable position if the court were to order their return to the Netherlands pursuant to Article 13b. 

    In a review of the authorities in relation to acquiescence and/or consent, the court confirmed that acquiescence was a subjective state of mind, it was a pure question of fact and the burden of proving it was on the abducting parent. The court said that judges should be slow in inferring acquiescence from attempts to reconcile or agree a voluntarily return. Furthermore consent needed to be clear and unequivocal although this could be inferred from the circumstances of the case.  

    The court held that there was no evidence of anyone speaking directly to F about the removal. Taken at its highest the maternal family's evidence was that F would have known about the plan to move to the UK at a time when there were discussions between the families regarding reconciliation. Waiting two months after becoming aware of the removal to try and affect reconciliation was reasonable. The court found nothing in F's conduct which could amount to acquiescence. 

    In respect of risk of harm, M asserted that she had been physically and sexually abused by F during their relationship. The court found that M had lied about the sexual abuse and there was insufficient evidence to support a finding of physical abuse. However the court proceeded on the basis of M's case in respect of the physical abuse for the purpose of the judgment. On either party's case there had been no contact between the parents from February and September 2012 when M had moved to the UK. F offered undertakings to regulate his behaviour towards M and the court was satisfied, based on M's ability to call upon the assistance of the Dutch courts and police and F's undertakings, that there was no grave risk of harm. 

    Finally in the event the court had been wrong in its conclusion under Article 13b and the question of discretion arose, the court confirmed that it would unhesitatingly conclude it was manifestly in the best interest of the children to return to the Netherlands where they had lived all their lives prior to September 2012. Accordingly it was ordered that the children should be returned to the Netherlands.

Case note, published: 18/02/2014

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See also

  • Application under the Hague Convention for the summary return of three children from this country to the Netherlands. An order was made for the return of the children to the Netherlands within 14 days. Judgment, 11/12/2013, free

Published: 18/02/2014

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