Tuesday, January 24, 2006

Hague Convention: Consent & Acquiescence

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.