| Judgment - In re H and others (Minors) continued |
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Active and Passive Acquiescence
The primary question in the present case is
whether the father, by pursuing his remedies in the Israel Beth Din in accordance with the
tenets of his religion rather than promptly bringing proceedings for summary return of the
children under Article 12, has acquiesced in "the removal" of the children. It is not
a case of wrongful "retention" by the mother: it is established by the decision of this
House in In re H (Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476 that there is
"retention" of the child for the purposes of the Convention only where the child has
been lawfully taken from one country to another (e.g. for staying access for a defined period)
and there has then been a wrongful failure to return the child at the expiry of that period. In
the present case, the mother wrongfully removed the children and the question is whether the
father has acquiesced in that removal. It will be apparent from my account of the
decisions in the courts below that they approach the question of acquiescence from different
standpoints. Sumner J. considered all the circumstances of the case with a view to deciding
whether the father had in fact agreed to the children staying in this country at least until their
long-term future had been determined by some court. The Court of Appeal, on the other
hand, applied a rule of law, namely that in a case of "active" acquiescence (said to
be the father's persistent attempt to have his matrimonial affairs dealt with in the Israel Beth
Din) the actual state of the father's mind was an irrelevant factor to take into account. In the
words of Waite L.J. "Where the conduct relied on is active, little if any weight is accorded
to the subjective motives or reasons of the party so acting." The question is whether
there is any such rule of law. The distinction between "active" and
"inactive" acquiescence was first drawn by the Court of Appeal in In re A.
(Minors) (supra). In that case the mother had wrongfully removed the children from
Australia to this country. Shortly thereafter the father wrote a letter to the mother saying that
"I think you know that what you have done is illegal, but I'm not going to fight it"
and generally giving the impression that he would regretfully go along with the children's
staying permanently with the mother in this country. In fact, unknown to the mother, the father
took immediate legal advice in Australia and was told of his Convention rights. Before the
mother received the father's letter, there was a telephone conversation in which the father told
the mother that he had taken such advice and mentioned the Convention. Despite the father's
endeavours, there was a delay of some three months before the mother was served with
proceedings under the Convention and in the meantime there was no further relevant
communication between the two. Thorpe J. held that it was not sufficient to investigate only
the communications between the parents: whether or not there had been consent or
acquiescence could not be determined only by what he represented to the other spouse:
"His words must be judged in the round. His words must be judged together with his
actions." Judged on that basis Thorpe J. held that it was clear that the father had not, in
fact, acquiesced and ordered the summary return of the children. The Court of Appeal by a majority reversed the
judge's decision. Balcombe L.J. in a powerful dissenting judgment agreed with the judge's
approach: whether or not the party had acquiesced was a question of fact directed to his
subjective frame of mind to be judged in all the circumstances of the case. However, the
majority reversed the judge's decision. Stuart Smith L.J. for the first time drew the distinction
between active and passive acquiescence. In his formulation, active acquiescence consists of
words or actions inconsistent with the wronged parent having an intention to insist on his
rights and consistent only with an acceptance of the status quo: passive acquiescence
consists of silence or inactivity from which the court can draw an inference of acquiescence.
He held that the father, by writing the letter, had actively acquiesced and that the judge had
erred in taking into account his actual intentions subsequent to that letter and
uncommunicated to the mother. Lord Donaldson M.R. adopted a similar approach.
The later decisions
The distinction between active acquiescence (in
relation to which the uncommunicated subjective intentions of the wronged parent is normally
irrelevant) and passive acquiescence (in relation to which such subjective intention is relevant)
has influenced the later decisions of the Court of Appeal in this field. In In re A. Z. (A
Minor) (supra) Sir Michael Kerr (at p. 689) said that the question of acquiescence
depended not on the wronged parent's subjective state of mind but on his conduct, viewed
objectively. Sir Donald Nicholls V.- C. (at p. 691) treated the relevant question as being an
objective one, viz. whether in all the circumstances the wronged parent "has conducted
himself in a way that would be inconsistent with him later seeking a summary order for the
child's return", an approach also adopted by Butler-Sloss L.J. That same test was
applied by Waite L.J. in In re S. (Minors) (supra). In that case Hoffmann L.J. (at p. 836)
indicated that the distinction between active and passive acquiescence might have to be
reconsidered in the future. Neill L.J. said that active and passive acquiescence must not be
"allowed to become rigid categories or substituted for the general term 'acquiesced' in
the Convention." He said that "the court is primarily concerned, not with the
question of the other parent's perception of the applicant's conduct, but with the question
whether the applicant acquiesced in fact." However, following In re A. (Minors)
[1992] Fam. 106 he recognised that there can be cases where the wronged parent has made
an unambiguous statement which viewed objectively shows that he is agreeing to the
retention of the children in which case such statement "is sufficient and conclusive
evidence of acquiescence."
My Lords, this short and necessarily inadequate
survey of the Court of Appeal decisions is sufficient to show that the existing authorities do not
justify the bald proposition of law formulated and applied by the Court of Appeal in the present
case. The fact that there has been some active conduct indicating possible
acquiescence does not, on any view, justify ignoring the subjective intentions of the wronged
parent. Even on the test laid down in In re A. (Minors) [1992], it is only where the
wronged parent has said or done something which is clearly and unequivocally inconsistent
with the summary return of the child that his actual subjective intentions are to be disregarded.
The test applied by the Court of Appeal in the present case, and the conclusions reached by it,
suggest that evidence of the wronged parent's actual intentions are irrelevant or seldom of any
weight where there has been positive action of any kind by the wronged parent. The
authorities do not support that proposition.
However, I do not think it desirable to decide
this appeal on that narrow ground. The authorities disclose a variety of approaches to the
meaning of the word "acquiescence" in Article 13 and it is desirable that your
Lordships should attempt to state the principles to be adopted. There are three related
questions which have to be considered, viz. -
Is acquiescence subjective or objective?
In English law, the concept of acquiescence
occurs in many different contexts: waiver, election, laches, estoppel, etc. As Hoffmann L.J.
demonstrated in In re S. (Minors) (supra) what constitutes acquiescence under English
law varies according to the context in which it is found. But in English law acquiescence by
one party normally depends upon his outward actions which must be known to the other party
if the latter seeks to rely on them. As between two parties, the outward acts of one party,
known to the other, which objectively viewed demonstrate consent by the former to a
particular state of affairs will constitute acquiescence. It is this English concept of
acquiescence which is reflected in references in the authorities on Article 13 to the
circumstances having to be viewed objectively and in the distinction between active and
passive acquiescence. In my view these English law concepts have no
direct application to the proper construction of Article 13 of the Convention. An international
Convention, expressed in different languages and intended to apply to a wide range of
differing legal systems, cannot be construed differently in different jurisdictions. The
Convention must have the same meaning and effect under the laws of all contracting States. I
would therefore reject any construction of Article 13 which reflects purely English law rules as
to the meaning of the word acquiescence. I would also deplore attempts to introduce special
rules of law applicable in England alone (such as the distinction between active and passive
acquiescence) which are not to be found in the Convention itself or in the general law of all
developed nations. What then does Article 13 mean by
"acquiescence"? In my view, Article 13 is looking to the subjective state of mind of
the wronged parent. Has he in fact consented to the continued presence of the children in the
jurisdiction to which they have been abducted? This is the approach adopted by Neill L.J. in
In re S. (Minors) (supra) and by Millett L.J. in In re R. (supra). In my judgment it
accords with the ordinary meaning of the word acquiescence in this context. In ordinary
litigation between two parties it is the facts known to both parties which are relevant. But in
ordinary speech a person would not be said to have consented or acquiesced if that was not
in fact his state of mind whether communicated or not. I am encouraged to find that this is also the
view reflected in decisions in other jurisdictions. In the French Cour de Cassation Case No.
228 of 16 July 1992 the court, whilst accepting that acquiescence could be inferred from
conduct, held that acquiescence could not be inferred simply from the wronged parent having
concurred in a temporary arrangement with a view to arriving at an amicable solution: the
court was looking to the actual intention of the parent. The District Court of Massachusetts in
Wanninger v. Wanninger (1994) 850 F. Supp. 78 concentrated on the actual intention
of the wronged German parent despite his visiting the mother in the U.S.A. (to which the
children had been abducted) to seek a reconciliation. In Friedrich v. Friedrich (1996)
78 F. 3d 1060 the Court of Appeals of the 6th circuit adopted a similar approach. In my judgment, therefore, in the ordinary case
the court has to determine whether in all the circumstances of the case the wronged parent
has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual
subjective intention of the wronged parent, not of the outside world's perception of his
intentions.
Is acquiescence a question of fact or law?
Once it is established that the question of
acquiescence depends upon the subjective intentions of the wronged parent, it is clear that
the question is a pure question of fact to be determined by the trial judge on the, perhaps
limited, material before him.
In the process of this fact-finding operation, the
judge, as a matter of ordinary judicial common sense, is likely to attach more weight to the
express words or conduct of the wronged parent than to his subsequent evidence as to his
state of mind. In reaching conclusions of fact, judges always, and rightly, pay more attention
to outward conduct than to possibly self-serving evidence of undisclosed intentions. But in so
doing the judge is finding the actual facts. He can infer the actual subjective intention from the
outward and visible acts of the wronged parents. That is quite a different matter from imputing
to the wronged parent an intention which he did not, in fact, possess. Although each case will depend on its own
circumstances, I would suggest judges should be slow to infer an intention to acquiesce from
attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary
return of the abducted child. The Convention places weight on the desirability of negotiating a
voluntary return of the child: see Article 7(c) and Article 10. I disagree with the Footnote to the
judgment of Waite L.J. if it is intended to provide guidance to judges in their fact-finding role.
Attempts to produce a resolution of problems by negotiation or through religious or other
advisers do not, to my mind, normally connote an intention to accept the status quo if those
attempts fail. It is for the judge, in all the circumstances of the case, to attach such weight as
he thinks fit to such factors in reaching his finding as to the state of mind of the wronged
parent. This was the approach adopted by the French Cour de Cassation in the case to which
I have referred. Finally, it should always be borne in mind that
under Article 13 the burden of proving that the wronged parent has consented to or
acquiesced in the abduction is on the abducting parent who is resisting the summary return of
the child. This placing of the burden of proof on the abducting parent is designed to ensure
that the underlying purpose of the Convention is carried out, viz., the child is to be summarily
returned to its country of habitual residence unless the abductor can prove that the other
parent has in effect consented to the removal of the child.
The exception
It is a feature of all developed systems of law
that there are circumstances in which one party, A, has so conducted himself as to mislead
the other party, B, as to the true state of the facts. In such a case A is not allowed
subsequently to assert the true facts as against B. In English law, this is typically represented
by the law of estoppel but I am not suggesting that the rules of English law as to estoppel
should be imported into the Convention. What is important is the general principle to be found
in all developed systems of law.
It follows that there may be cases in which the
wronged parent has so conducted himself as to lead the abducting parent to believe that the
wronged parent is not going to insist on the summary return of the child. Thus the wronged
parent may sign a formal agreement that the child is to remain in the country to which he has
been abducted. Again, he may take an active part in proceedings in the country to which the
child has been abducted to determine the long term future of the child. No developed system
of justice would permit the wronged parent in such circumstances to go back on the stance
which he has, to the knowledge of the other parent, unequivocally adopted: to do so would be
unjust.
Therefore in my judgment there are cases (of
which In re A. Z. (A Minor) (supra) is one) in which the wronged parent, knowing of his
rights, has so conducted himself vis-à-vis the other parent and the children that he
cannot be heard to go back on what he has done and seek to persuade the judge that, all
along, he has secretly intended to claim the summary return of the children. However, in my
judgment these will be strictly exceptional cases. In the ordinary case behaviour of that kind
will be likely to lead the judge to a finding that the actual intention of the wronged parent was
indeed to acquiesce in the wrongful removal. It is only in cases where the judge is satisfied
that the wronged parent did not, in fact, acquiesce but his outward behaviour demonstrated
the contrary that this exceptional case arises. My Lords, in my judgment these exceptional
circumstances can only arise where the words or actions of the wronged party show clearly
and unequivocally that the wronged parent is not insisting on the summary return of the child:
they must be wholly inconsistent with a request for the summary return of the child. Such
clear and unequivocal conduct is not normally to be found in passing remarks or letters written
by a parent who has recently suffered the trauma of the removal of his children. Still less is it
to be found in a request for access showing the wronged parent's desire to preserve contact
with the child, in negotiations for the voluntary return of the child, or in the parent pursuing the
dictates of his religious beliefs. It may be objected that to admit the existence of
such exceptional cases in which the actual subjective intentions of the wronged parent do not
prevail is to reintroduce by the back door the distinction between active and passive
acquiescence which I have rejected. It is true that there are features common to both
approaches. But in my judgment the two concepts are not the same. The concept of active
and passive acquiescence has led to the approach that acquiescence has to be tested
objectively whereas in my view it is a question of subjective intention. The concept of active
and passive acquiescence has also led, as in the present case, to a wronged parent who has
not, in fact, acquiesced being held to have acquiesced because he has taken some positive
action without any analysis of what he has in fact done. The important factor to emphasise is
that the wronged parent who has in fact never acquiesced is not to lose his right to the
summary return of his children except by words or actions which unequivocally demonstrate
that he was not insisting on the summary return of the child.
Summary
To bring these strands together, in my view the
applicable principles are as follows:
Conclusion
Applying that approach to the present case, the
judge found that in fact the father never acquiesced in the retention of the children in this
country. The requirements of his faith required him to pursue his claims in the Beth Din. The
question therefore is whether this was one of those exceptional cases when, by his actions,
the father has led the mother reasonably to believe that, contrary to the father's true
intentions, he was not seeking the summary return of the children.
In order to bring this case within the exception,
the mother would have to show that the father's actions were clearly and unequivocally
inconsistent with his pursuit of his summary remedy under the Convention. The facts are far
from satisfying that test. As to the father's recourse to the Beth Din, the mother as an
Orthodox Jew must have known of the religious requirement to go first to the Beth Din before
resorting to the other courts with the consent of the Beth Din. Moreover, the exact nature of
the proceedings in the Beth Din was not demonstrated. If (improbably) the Beth Din
proceedings related only to the marriage and not to the children, there is no inconsistency
between the Beth Din proceedings and the right to the summary return of the children: they
would be concerned with different matters. If, as was not proved, the Beth Din proceedings
related also to the children, they do not disclose anything other than that the father, as his faith
required, was seeking to secure the decision of his religious court in Israel as to the future of
the children. There is nothing inconsistent in a wronged father pursuing remedies in the courts
of habitual residence (whether religious or civil) and subsequent recourse to the Convention
for the summary return of the children by the courts of the country to which the child has been
abducted. As to the father's suggestion of access in Israel
over Passover coupled with an agreement to return them to the United Kingdom, this proposal
was as consistent with the father wishing to retain his contact with the children as with the
decision by the father not to pursue the summary remedy for their return. It falls far short of
any clear and unequivocal indication that the father is not pursuing remedies under the
Convention.
The judge inadvertently misdirected himself in relation to the letter wrongly dated 25 March 1996. However, in my judgment this does not affect the validity of his conclusion. He reached the only possible conclusion, bearing in mind his finding that the father never in fact acquiesced in the removal of the children. In my judgment, for the reasons I have given the Court of Appeal misdirected itself in law. It is for these reasons that I joined with your Lordships in allowing the appeal and ordering the summary return of the children to Israel.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.
LORD MUSTILL
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.
LORD HOFFMANN
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.
LORD CLYDE
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.
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