Defences under Articles 12 and 13(a): consent, acquiescence and settlement
Deiniol Cellan-Jones & Charlotte Hartley
1 King's Bench Walk
14 April 2012
The defences of acquiescence under Article 13(a) and settlement are closely related notwithstanding a defence under Article 12 is only available when more than 12 months have elapsed between the alleged wrongful removal/retention and the issue of proceedings. There is frequently a factual overlap; delay in issuing an application under the Hague Convention may allow the child to settle in his new jurisdiction, and delay can simultaneously be interpreted (and pleaded) as evidence of acquiescence on the part of the applicant.
As the recent case law considered below establishes, there is also a close legal connection between the operation of these defences. When the court is no longer in ‘hot pursuit', the Hague Convention's primary objective of a speedy return of the child to his place of habitual residence cannot be achieved. The House of Lords has guided accordingly that material delay in issuing proceedings must reduce the prominence of the Hague Convention considerations amongst broader principles of child welfare. This is the current state of the law in all cases where there has been a delay in issuing proceedings, whether that delay has exceeded 12 months (and therefore Article 12 is engaged) or not. The authorities dealing with this point are thus equally applicable to cases in which Article 13(a) and Article 12 respectively are pleaded.
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