Anonymized Summary of Legal Opinion
Factual and Procedural Background
This appeal concerns a two-year-old child ("Child") born in The State in June 2023 to parents of Romanian origin. Shortly after birth the Child travelled to The State with the Mother and lived there for approximately fourteen months. In August 2024 the Mother returned to The State with the Child. In April 2025 the Father applied to the English court for the Child's return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the 1980 Hague Convention").
The Mother opposed summary return, relying on Article 13 defences of the 1980 Hague Convention: (i) consent by the Father to the Child's removal in August 2024 (Article 13(a)); (ii) subsequent acquiescence by the Father in the Child's retention (Article 13(a)); (iii) acquiescence by the courts of the requesting State (Article 13(a)); and (iv) grave risk of physical or psychological harm or intolerable situation (Article 13(b)).
The father's application was heard over two days by Judge Peel. In a reserved judgment dated 2 October (hearing in September), Judge Peel ordered summary return to occur subject to extensive protective conditions and stayed the return until those measures were enforceable in The State. Judge Peel refused permission to appeal; permission was later granted by Judge Moylan on limited grounds and the return remained stayed pending the appeal. The appellate court heard argument and delivered the judgment dismissing the appeal.
Legal Issues Presented
- Whether the Father consented to or subsequently acquiesced in the Child's removal/retention in The State such that Article 13(a) of the 1980 Hague Convention bars summary return.
- Whether the courts of the requesting State (The State) can be said to have acquiesced in the removal/retention of the Child such that Article 13(a) applies.
- Whether a return would expose the Child to a grave risk of physical or psychological harm or otherwise place the Child in an intolerable situation under Article 13(b) of the 1980 Hague Convention, taking into account available protective measures.
Arguments of the Parties
Appellant's (Mother's) Arguments (presented by Attorney Perrins)
- The September 2024 negotiations conducted by Community Elders produced a concluded agreement (or at least induced objective acquiescence) that, for a sum of €13,000, the Father agreed that the Child would remain in The State; therefore Article 13(a) applies.
- Alternatively, the Father's words and conduct (and the payment by the maternal family) amounted to objective acquiescence under the Re H exception.
- The Romanian court has effectively acquiesced (or at least its procedural steps, such as commissioning an assessment in The State, are inconsistent with a summary return), so Article 13(a) should be engaged on that basis.
- On Article 13(b) the Judge under-estimated the level of risk to the Child, conflated risk with protectability, and should have given greater weight to the factual findings (including threats and the €13,000 payment) showing a grave risk which protective measures would not adequately address.
Respondent's (Father's) Arguments (presented by Attorney Gupta)
- There was no concluded agreement from the September 2024 negotiations that the Child would remain in The State; negotiations are not to be treated as acquiescence absent a clear, unequivocal agreement (relying on P v P and Re H).
- The Romanian court has not acquiesced: the Romanian courts have taken steps (including asserting jurisdiction and treating the removal as wrongful) inconsistent with acquiescence; procedural measures in The State do not equate to acquiescence.
- The Judge correctly applied the Re E approach to Article 13(b): the Mother's allegations were taken at their highest, the Judge considered corroborative evidence (police reports, messages), and the risk could be mitigated by enforceable protective measures in The State; the Judge was entitled to defer return until such measures were enforceable.
- The trial judge's factual findings were within the permissible range and should not be disturbed on appeal (relying on Volpi v Volpi principles about appellate interference with primary fact findings).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court in this Case |
| Re H & Others (Minors) (Abduction: Acquiescence) [1997] UKHL 12; [1998] AC 72 |
Seminal exposition of acquiescence under Article 13: subjective test (actual state of mind of the wronged parent) and the limited objective exception where words/actions are "clear and unequivocal". Burden and evidential approach described. |
The court recited Lord Browne-Wilkinson's summary and applied the subjective/objective framework to assess whether the Father had consented or acquiesced; concluded that neither limb was satisfied. |
| In re S (Minors) [1994] 1 FLR 819; In re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 |
Precedent cited as supporting the subjective approach to acquiescence (focus on actual state of mind). |
These authorities were noted by the court as part of the backdrop to Re H and the court relied on the subjective test in assessing the Father's state of mind. |
| P v P [1998] 1 FLR 630 |
Negotiations or attempts to settle do not amount to acquiescence unless there is a concluded agreement; negotiations should not be discouraged. |
The court applied P v P to hold that the September 2024 negotiations did not amount to acquiescence in the absence of a concluded, clear agreement that the Child would remain in The State. |
| NM v SM [2017] EWHC 1294 (Fam) |
Addressed whether a foreign court could be said to have acquiesced; factual circumstances where a court did not assert jurisdiction or make orders were considered relevant to acquiescence. |
The court considered NM v SM but found it did not support the Mother's contention that the requesting State's court had acquiesced; the judgment was distinguished on its facts. |
| London Borough of Haringey v T (1996 Hague Convention, Article 7) [2024] EWFC 151 |
Considered acquiescence and jurisdictional issues in the context of outgoing/receiving courts; discussed objective vs subjective approaches. |
The court accepted Haringey as authority that a court could be considered to acquiesce in principle but distinguished it on grounds that the present court was being asked to conclude a foreign court had acquiesced. |
| Re H (Abduction: Rights of Custody) [2000] 2 AC 291 |
Purposive construction of "having the care of the person of the child" and concept of rights of custody for Convention purposes. |
The court relied on Re H for the proposition that a court can possess "rights of custody" and for construing Article 13 language, but concluded that vesting rights is different from a court's acquiescence. |
| Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 |
Article 13(b) is of restricted application; test requires asking whether allegations, if true, create a grave risk and then whether protective measures can mitigate that risk. |
The court followed Re E's approach: the Mother's allegations were taken at their highest, the risk was assessed, and focus was placed on whether enforceable protective measures in The State could mitigate the risk. |
| Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10; [2012] 2 AC 257 |
Relevant principles on abduction and rights of custody referenced in discussion of Article 13(b). |
Referenced by the judge as part of the body of authorities informing assessment of risk and protective measures. |
| Re C (Children) (Abduction: Article 13(b)) [2018] EWCA Civ 2834 |
Guidance on applying Article 13(b) principles and on assessing risk. |
Cited among authorities considered by the judge when evaluating grave risk and protective measures. |
| G v D [2020] EWHC 1476 (Fam) |
Further authority on Article 13(b) approach and risk assessment. |
Used by the judge as part of the legal framework for assessing risk to the Child. |
| Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123 |
Baker LJ summarised core principles relevant to Article 13(b). |
The court cited Re IG for the summary of core principles and applied those principles in its evaluative assessment of risk and protectability. |
| Re C (Article 13(b)) [2021] EWCA Civ 1354 |
Considerations relevant to the Article 13(b) inquiry. |
Included in the suite of authorities informing the judge's review of the Article 13(b) issue. |
| Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415 |
Consideration of protective measures and agreements to return under Article 13(b). |
Referenced by the judge in assessing the adequacy and enforceability of proposed protective measures. |
| Re H-N [2021] EWCA Civ 448 |
Jurisprudence on impact of domestic abuse on child welfare. |
Referenced in assessing the impact of alleged domestic abuse on the Child and Mother. |
| Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 |
Principles limiting appellate interference with trial judge's findings of primary fact and inferences. |
Relied upon by the Respondent to support the proposition that the trial judge's fact findings should not be disturbed unless plainly wrong. |
Court's Reasoning and Analysis
The appellate court reviewed the trial judge's factual findings, evidence and legal analysis under three principal heads: (1) acquiescence by the Father; (2) acquiescence by the requesting State's courts; and (3) Article 13(b) grave risk.
1. Acquiescence by the Father (Article 13(a)): The court applied the Re H framework distinguishing subjective acquiescence (actual state of mind) from the narrow objective exception (clear and unequivocal conduct). The Mother relied principally on the September 2024 negotiations conducted by Community Elders and the alleged €13,000 payment. The judge's factual findings were:
- The September 2024 discussions were informal, conducted by elders without contemporaneous written record, and the Mother took little direct part.
- The elders told different things to each side; each party left with different understandings and no overall agreement was reached that the Child would remain in The State.
- A sum of €13,000 was raised by the maternal family and given to the elders for onward transmission, but there was no independent direct evidence it reached the Father; the judge accepted the maternal grandfather's text and some corroboration but made no finding of a payment specifically securing the Child's stay in The State.
On these findings, the court concluded the Mother failed to discharge the burden to show either subjective acquiescence or the exceptional objective acquiescence. The informal, confused nature of the negotiations and the absence of a clear, unequivocal agreement were decisive.
2. Acquiescence by the Requesting State's Courts: The court considered whether the Romanian courts had acquiesced. It reviewed authorities suggesting a court might in principle be characterised as having 'rights of custody' but recorded scarce authority for a court being held to have acquiesced. The trial judge's view that it would be "highly unusual" for a foreign court to be found to have acquiesced was upheld. The appellate court noted the Romanian court had expressly treated the removal as wrongful and had determined jurisdiction in favour of The State, which was inconsistent with acquiescence.
3. Article 13(b) Grave Risk and Protective Measures: The court took the Mother's allegations "at their highest" in accordance with Re E. It accepted the seriousness of threats and recorded corroborative material (police reports and abusive messages). The key inquiry was whether the risk to the Child would be grave and, if so, whether effective protective measures could be put in place.
- The Single Joint Expert on Romanian law advised that many protective measures could be recognised and enforced in The State via the 1996 Hague Child Protection Convention (exequatur procedure) and that urgent interim measures and victim-protection orders exist in The State.
- The trial judge concluded the proposed measures, if enforceable in The State, would sufficiently ameliorate the risks and that the Child would not be exposed to a grave risk or intolerable situation if return were deferred until enforceability was secured.
- The appellate court accepted the judge's evaluative exercise, including the decision to stay return pending measures' enforceability, and rejected the contention that the judge conflated risk assessment with protectability or underestimated the factual picture.
Throughout, the appellate court emphasised deference to the trial judge's findings on primary fact where the evidence was complex and the judge had seen and heard witnesses, applying principles limiting appellate interference.
Holding and Implications
HOLDING: The appeal is DISMISSED.
Implications and direct effects:
- The trial judge's order for the Child's return to The State stands, subject to the conditions and the stay already imposed until the protective measures and conditions are declared enforceable in The State (or otherwise incorporated into enforceable orders of the courts of The State).
- The appellate court endorsed the trial judge's use of enforceable protective measures and the decision to defer physical return until such measures were in place.
- The court remitted any further case management (including setting a new return date) to Judge Peel and invited submissions from counsel on an adjusted return timetable.
- No new legal precedent was established; the decision applies established authorities (as cited) to the facts and affirms the trial judge's factual and evaluative conclusions in this case.
This information is a faithful and anonymized summary of the opinion as provided. Where the source text provided no additional material (for example, detailed drafting of particular orders beyond those summarised above), no further facts or inferences have been added.