ABDUCTION: D v S [2008]

15 APR 2008

(Family Division; Charles J; 19 March 2008)

The father, who shared the child's care with the mother, had agreed to the family moving from Mexico to England for a period, on the basis that the move would be temporary rather than permanent. The mother had never intended to return with the child to Mexico. When the mother's intentions became clear, the father failed to initiate Hague Convention proceedings straight away, having received advice that such a claim was unlikely to succeed. However, his eventual application for the child's summary return to Mexico was made before the child became settled.

Refusing to make an order for the summary return of the child to Mexico, but giving the father permission to take the child back to Mexico after the Mexican courts had had an opportunity to determine the welfare issues, the court held that there had been a wrongful removal under the Convention, that the father had acquiesced by failing to initiate Hague proceedings, but that a return to Mexico was in the child's best interests. Subjective acquiescence could be established by showing an adequately informed subjective decision not to seek a summary return under the Hague Convention, even if that decision was based on advice that summary return would not be ordered. A person who acted on advice as to his rights or his prospects of successfully making a claim, or who received and acted on advice that had considered those matters, had to take the consequences of doing so, by reference to the knowledge of all the advisers who took part in the decision-making process. Correct legal advice was not an essential ingredient of acquiescence. Advice on the Hague Convention should be given after careful enquiry as to the position of the parent who might rely on it, and in many cases when a wrongful removal was under consideration an express reservation of the right to bring proceedings for a summary return might be advisable.

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