Acquiescence by Open Litigation Conduct: NICA holds that counsel‑endorsed position papers and a draft order conceding jurisdiction amount to clear and irrevocable Article 13(1)(a) acquiescence

Introduction

In OP v GL [2025] NICA 55, the Court of Appeal in Northern Ireland (Keegan LCJ delivering the judgment of the court, with Colton LJ and McAlinden J) dismissed a left-behind father’s appeal against the High Court’s refusal to order the summary return of three children to the Republic of Ireland under the Child Abduction and Custody Act 1985 (the domestic implementation of the 1980 Hague Convention).

The parents, both Sudanese nationals, had lived in multiple jurisdictions before settling separately on the island of Ireland: the father in the Republic of Ireland, the mother with the children in Northern Ireland after an admitted wrongful removal in October 2024. The mother resisted return on three principal grounds under Article 13: (a) the father’s acquiescence to the children remaining in Northern Ireland; (b) grave risk of physical or psychological harm (and otherwise an intolerable situation) on return; and (c) the children’s objections.

Central to the appeal were starkly different accounts: the mother’s allegations of sustained domestic abuse and coercive control, including serious incidents in Malta and Northern Ireland, contrasted with the father’s complete denial and counter‑allegations of fabrication. Although the first instance judge upheld all three exceptions, the Court of Appeal signalled at the conclusion of argument that acquiescence alone was dispositive of the appeal, and later gave reasons on all three issues.

Summary of the Judgment

Acquiescence: The Court of Appeal upheld the High Court’s finding that the father had acquiesced to the children remaining in Northern Ireland, within Article 13(1)(a). The court placed decisive weight on a contemporaneous sequence of open, litigation‑facing documents and conduct: an email sent to the court office on 26 December 2024 (the text of which the father had drafted and directed the mother to send), a counsel‑signed position paper filed on the father’s behalf on 23 January 2025 stating the parties had reached consensus, and a draft order acknowledging Northern Ireland jurisdiction and habitual residence, with prohibited steps provisions. Subsequent disagreements on ancillary terms (passports/port alerts) did not negate acquiescence, nor did the father’s later change of position in April 2025.
Grave risk: The appellate court agreed that the evidential threshold for grave risk under Article 13(1)(b) was met on the affidavits and the Official Solicitor’s report, given serious and multi‑layered allegations of domestic abuse. However, the court identified a “missing link” in the first instance analysis regarding the availability and efficacy of protective measures on return and suggested further good practice (including judicial liaison and concrete, pre‑implemented safeguards). This critique did not affect the outcome because acquiescence was determinative.
Children’s objections: The court endorsed the judge’s application of the child’s objections defence. Despite the comparatively young ages (9 and 7), the children’s views were found to amount to genuine objections to return to the Republic of Ireland (not mere preferences), and their age and maturity allowed their views to be taken into account. The court accepted that if objections stood alone the outcome might have differed, but alongside acquiescence (and grave risk) the judge’s discretionary refusal of return was unimpeachable.
Disposition: Appeal dismissed. The Court emphasised the need for expedition in Hague Convention proceedings (Articles 2 and 11) and directed that welfare proceedings in Northern Ireland be progressed immediately.

Detailed Analysis

Precedents cited and their influence

Article 13(1)(a) – Acquiescence:

Re H (Minors) (Abduction: Acquiescence) [1998] AC 172: The seminal authority. Acquiescence turns on the left‑behind parent’s actual, subjective state of mind, proved by the abducting parent, with contemporaneous words and actions usually carrying most weight. There is an exception: where the left‑behind parent’s words/actions clearly and unequivocally signify that they will not assert the right to summary return, justice requires holding them to have acquiesced.
Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106: Acquiescence is not a continuing state of mind. Once communicated, it cannot be withdrawn.
P v P (Abduction: Acquiescence) [1998] 1 FLR 630: “Without prejudice” settlement proposals and negotiations may not suffice to prove acquiescence where matters remain at the negotiating stage and the left‑behind parent has not clearly and unequivocally accepted the new status quo.

The Court of Appeal distinguished P v P and applied Re H and Re A robustly: unlike in P v P, the father’s conduct went beyond negotiation into open, formalised litigation positions that conceded both jurisdiction and habitual residence. This crossed the “clear and unequivocal” line.

Article 13(1)(b) – Grave risk:

Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; adopted in F and M (Hague Convention: Grave Risk) [2024] NICA 38: Grave risk requires serious harm of a high order; the court undertakes a two‑stage inquiry: (1) risk assessment on the facts, and (2) whether adequate protective measures can sufficiently ameliorate that risk.
ZA and BY [2020] NIFam 9: In domestic abuse cases, there is a heightened need for protective measures to be not merely promised but implemented prior to return.
G v D [2020] EWHC 1476 (Fam): Unless the contrary is proved, courts should assume the requesting state’s systems are equally adept at protecting children; comity remains a foundational assumption.
G and T [2023] EWCA Civ 1415 (relying on Re D [2006] UKHL 51): The Convention should not itself become an instrument of harm; if effective protective measures are not in place at the point of return in a case where grave risk otherwise exists, harm may follow.
Re L [2023] EWHC 140: Where a left-behind parent fails to deliver essential protective measures (e.g., secure accommodation), a court may conclude that reliance on undertakings is insufficient.

The Court of Appeal accepted that, on the evidence, the qualitative threshold for grave risk was satisfied given the serious allegations and the Official Solicitor’s trenchant concerns, but flagged a lacuna in the first instance analysis regarding the practical firming‑up of protective measures in the Republic of Ireland and the need for pre‑implementation in domestic abuse contexts.

Child’s objections:

Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26; Re F (Child’s Objections) [2015] EWCA Civ 1022; as helpfully summarised in Re Q and V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam): The objections defence involves a gateway test with a relatively low threshold (is there an objection, not a mere preference, and has the child the age/maturity to have their views taken into account?), followed by a broad discretion stage where Convention objectives, the authenticity and strength of the objections, and welfare‑aligned factors are balanced.

The Court of Appeal applied these authorities to uphold the judge’s conclusion: the elder two children expressed genuine objections to return to the Republic of Ireland, their ages and maturity permitted the court to take their views into account, and their views could properly be weighed in the overall discretion.

The court’s legal reasoning

On acquiescence, the court’s reasoning is strikingly fact‑led and anchored in Re H’s emphasis on contemporaneous, objective indicators of subjective intent:

The 26 December 2024 email to the court office stated, in detailed and unambiguous terms, that both parents had agreed the children would remain in Northern Ireland; that the father would notify the court of his consent and withdraw the return application; and that the file should be closed.
A counsel‑signed position paper filed for the father on 23 January 2025 confirmed that “The parties have reached consensus regarding all matters relating to their children…”.
A draft order appended to that position paper expressly proposed that, as of 30 January 2025, the children’s habitual residence was Northern Ireland and that Northern Ireland should have jurisdiction, with prohibited steps orders to entrench the status quo.

The mother’s updated affidavit and WhatsApp evidence further established that the father authored and directed the sending of the 26 December text, reinforcing that the “agreement” was no mere aspiration. Minor disagreements that arose later about passports and port alerts did not undermine the core agreement; nor did the father’s change of position in April 2025. Applying Re A, once communicated, acquiescence cannot be withdrawn. The father’s lack of urgency thereafter (including failure to initiate any proceedings in the Republic of Ireland) was consistent with the court’s finding that he had indeed acquiesced.

On grave risk, the court endorsed a two‑stage analysis and the high threshold (Re E; F and M):

Stage 1 – Risk: The mother’s allegations were serious, multi‑layered, and partially corroborated by police involvement in Malta (2023) and Northern Ireland (2025). The Official Solicitor’s report recorded the children’s first‑hand accounts of harm (“flung her across the wall”, “he pushed me, and I broke my arm. He didn’t take me to hospital”), concluding with “grave concern” and the possibility of “significant harm”. On the totality of the material, the grave risk threshold was satisfied.
Stage 2 – Protective measures: While reaffirming the presumption of comity (G v D) and acknowledging that protective measures should, where possible, be pre‑implemented in domestic abuse cases (ZA and BY), the court identified a gap in the first instance analysis. There had been no judicial liaison or concrete evidential firming‑up of available measures in the Republic of Ireland, and the father had not taken prior steps to implement his undertakings (notably accommodation). Given the centrality of safe accommodation and the father’s limited means, the judge’s conclusion on the insufficiency of the undertakings was understandable, albeit “precipitous” without fuller cross‑border inquiries. The court’s critique was ultimately obiter because acquiescence disposed of the appeal.

On the children’s objections, the court rejected an overly technical approach. It held that:

The elder children’s views went beyond preference to constitute objections to returning to the Republic of Ireland, reasoned with reference to their lived experience in different locations and their sense of security and belonging in Northern Ireland.
Their ages (9 and 7) were at the lower end of the range traditionally seen, but there are “no bright lines”: they engaged confidently with the Official Solicitor, demonstrated understanding, and were not shown to be coached.
The judge’s discretionary balancing, taking into account Convention objectives, the authenticity and strength of the objections, and the broader findings on acquiescence and grave risk, disclosed no error.

Impact and prospective significance

The judgment crystallises several important practice points and doctrinal refinements:

Acquiescence by open litigation conduct: The court confirms that acquiescence can be established by the left‑behind parent’s own open, court‑facing documents and conduct, including a counsel‑endorsed position paper and a draft order conceding jurisdiction and habitual residence. Minor unresolved ancillary terms do not undercut acquiescence once the core agreement to remain is communicated. Later retraction does not undo the position.
Negotiation v. acquiescence: The decision distinguishes cases like P v P. “Without prejudice” proposals or ongoing negotiations are one thing; filing open documents that concede jurisdiction and habitual residence is quite another. Practitioners should exercise real care in the status of communications and the language used in position statements.
Protective measures analysis after Brexit: The court reiterates that, post‑EU withdrawal, protective measures analysis proceeds under the Convention and associated international good practice. Courts should actively explore, evidence, and where possible pre‑implement protective measures, with judicial liaison to the requesting state’s authorities where appropriate. The England & Wales protective measures factsheet and the International Network of Hague Judges guidance are recommended resources.
Domestic abuse context: In alleged domestic abuse cases, undertakings alone may be insufficient; their credibility depends on demonstrable ability and pre‑implementation. Safe accommodation is often pivotal and must be evidenced.
Child’s objections at younger ages: The court’s recognition that there are “no bright lines” on age underscores a trend toward taking children’s views more seriously even at younger ages, with authenticity and the distinction between “objection” and “preference” as the touchstones.
Case management and delay: The court’s admonition on delay is a reminder that Hague proceedings are summary; the six‑week expectation in Article 11 is not aspirational rhetoric. Prolonged adjournments can distort both risk and settlement dynamics.

Complex concepts simplified

Habitual residence: The country where a child is ordinarily living and has the centre of their life. Hague jurisdiction pivots on the child’s habitual residence immediately before wrongful removal or retention.
Wrongful removal/retention: Taking or keeping a child away from the place of habitual residence in breach of the other parent’s rights of custody actually being exercised at the time.
Acquiescence (Article 13(1)(a)): The left‑behind parent, after the wrongful removal, has accepted the situation such that they will not insist on summary return. The court focuses on the parent’s true, subjective state of mind, proved by the abducting parent, with strong weight attached to contemporaneous words and actions. Once communicated, acquiescence cannot be withdrawn.
Grave risk (Article 13(1)(b)): A high threshold. The court asks: (1) would return expose the child to a grave (very serious) risk of physical or psychological harm or an intolerable situation? (2) If so, can adequate protective measures in the state of habitual residence sufficiently reduce that risk? In domestic abuse cases, measures often need to be set up before the child is returned.
Child’s objections: A defence that can apply if a child objects to return (not just preferring not to) and has sufficient age and maturity for their views to be taken into account. If those conditions are met, the court exercises a broad discretion whether to return, considering Convention aims, the strength and authenticity of the objections, and welfare‑aligned factors.
Protective measures: Concrete safeguards in the requesting state to keep the child safe on return (for example, non‑molestation orders, supervised contact, social work oversight, safe accommodation, police alerts). Courts often liaise across borders to verify and organise these measures, and may require evidence they can be put in place immediately.

Practical guidance flowing from the decision

For left‑behind parents:

Be cautious in filing open documents that concede jurisdiction, habitual residence, or consent to the child remaining. Counsel‑endorsed position papers and draft orders will be treated as powerful indicators of acquiescence.
If negotiating, consider the use of “without prejudice” channels and clear reservations about rights to seek return. Do not signal finality unless intended.
Act promptly. Delay, agreed adjournments without progress, or failure to initiate complementary proceedings in the state of habitual residence can reinforce an inference of acquiescence or undercut a return claim.
In cases where Article 13(1)(b) may be engaged, proactively gather and evidence protective measures, with concrete arrangements (especially accommodation) pre‑implemented where possible.

For removing parents:

Preserve contemporaneous written evidence of the other parent’s consent or acquiescence; open, court‑facing acknowledgements carry particular weight.
Substantiate allegations of risk with objective material where available (police records, medical entries, third‑party reports). The Official Solicitor’s evidence can be influential where children’s accounts align.
Invite the court to liaise with the requesting state to test whether proposed protective measures are realistic and timely.

For practitioners and judges:

Acquiescence is fact‑sensitive but can be established by the left‑behind parent’s own litigation conduct; minor unresolved terms will not necessarily negate a core agreement.
Protective measures analysis should be rigorous, documented, and, in domestic abuse cases, aimed at pre‑implementation. Consider judicial liaison and the International Network of Hague Judges guidance; the England & Wales protective measures factsheet is a practical aid.
Avoid delay. Article 11’s six‑week expectation requires firm case management and disciplined adjournment practices.
Child’s objections at younger ages warrant a careful, authenticity‑focused analysis without rigid age thresholds; ensure interviewing is neutral and developmentally attuned.

Conclusion

OP v GL is a significant Northern Ireland Court of Appeal authority on three fronts. First, it gives sharp, practical content to Article 13(1)(a): a left‑behind parent’s open, litigation‑facing concessions—here, a counsel‑signed position paper and a draft order conceding jurisdiction and habitual residence—can amount to clear and unequivocal acquiescence that cannot later be withdrawn. Second, it reinforces the two‑stage framework for Article 13(1)(b), endorses a high threshold for grave risk, and emphasises the need for a robust, evidence‑based protective‑measures analysis, with a premium on pre‑implementation in domestic abuse cases and cross‑border judicial liaison. Third, it confirms that younger children’s genuine objections can meet the gateway and feature meaningfully in the discretionary balance, while cautioning against an overly technical approach.

The appeal’s dismissal rests squarely on acquiescence and serves as a cautionary tale: open concessions in Hague litigation can decisively fix the legal landscape. More broadly, the judgment encourages disciplined expedition, careful handling of settlement communications, and a methodical approach to protective measures—so that the Convention remains a mechanism for protection, not an instrument of harm.