‘Acquiescence’ Defence to International Child Abduction Succeeds

Serena Sandhu

‘Acquiescence’ defence to cross-border child abduction dispute succeeds

At Osbornes Law, our specialist child abduction team supports clients in a wide range of complex cross-border family law matters, involving the following:

1. Where a child has been unlawfully been brought to or retained in England and without your agreement;
2. Where a child is at risk or has been taking to or retained in another country without your consent; or
3. Where you have brought your child or retained your child in England and Wales without consent and the other parent seeks for the return of the child to their country of habitual residence.

Facing the possibility or reality where your child may have or has been abducted is highly distressing, but there are robust legal avenues available to secure the prompt return of children wrongfully removed or retained pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

In some cases, if the child has been brought to or retained in England and Wales without consent, the left behind parent can apply for the child’s summary return under the Hague Convention. These applications can be made on an urgent and without notice basis. Where necessary, court orders can be obtained to locate your child, seize passports and to prevent the child from being abducted to another jurisdiction.

However, the abducting parent may raises defences under the Hague Convention, on the grounds that it was not an unlawful removal or, for example, the left behind parent had agreed to or ‘acquiesced’ in the retention (for example, they had gone along with it) (Article 13(a)).

Recent Case: PB v JV [2025] EWHC 2144 (Fam)

The key issue for the court in this case was whether the father had acquiesced to the child continuing to stay in England. If so, the mother’s defence would succeed, and the child would not be returned to New Zealand.

Background

The parties’ son was born in 2022 in New Zealand and spent his first two years there. The mother is British and had lived in New Zealand since 2010.

In September 2024, the mother, with the father’s consent, took their son to England for a family wedding for what was agreed to be a limited time (a month or so). However, she failed to return with their child and the father brought proceedings under the Hague Convention for the prompt return of the child.

The mother raised two defences:

1. That the father had ‘acquiescence’ to the child remaining in England; and
2. That the child would be exposed to physical or psychological harm or place him in an intolerable situation if returned. The Judge swiftly rejected the second defence early on.

The court heard that by the end of September 2024, the mother had clearly decided she was not going to return to New Zealand with the child for the time being, and told the father so. In the days immediately after, the father was understandably distressed and emotional; and had been trying to persuade her to return. He was also investigating various routes to get their son back to New Zealand.

However, by 4 October 2024, the father’s tone shifted. In text messages, he expressed a level of resignation to the mother and the child remaining in the UK; that he would rent out the house in New Zealand; she could keep ‘the boy’; and he would welcome her return in the future. A few days later, he said he wanted a separation.

By 3 March 2025, the father had changed his mind again and said he wanted his son to return to New Zealand.

Acquiescence

The judge concluded that by 28 September 2024, the mother had wrongfully retained the child in England (at a time when he was still habitually resident in New Zealand).

However, he also found unequivocally that the father had acquiesced to the child’s remaining in England. The judge carefully considered all the evidence, including the surviving messages between the parents and transcripts of telephone conversations. Viewed as a whole, he decided that the father had acquiesced to the child remaining in England.

The father had been aware of his legal options from the start; informed the mother of this; but chose not to pursue them for a significant period of time. Five months’ worth of messages up to 3 March 2025 revealed a clear assumption that the mother and the boy would be remaining in England – the father had even helped her search for a job.

Funding for legal advice or representation

Legal aid funding is available to any parent whose child has been brought to England or Wales from a country that is a member of The Hague Convention on the civil aspects of international child abduction or The European Convention on the recognition and enforcement of custody decisions.

Legal aid may also be available to left-behind parents in countries that are not signatories to any of the international agreements regarding child abduction.

Once we understand your circumstances, we will advise what funding might be available and discuss which payment options might work best for you.

How can we help?

The case is an important reminder that if you believe your child has been wrongfully removed or abducted, prompt action must be taken to secure their return to (or from) England and Wales. It is vital to take urgent advice, even if you are considering agreeing to their continued retention abroad – you could risk being unable to secure their return on the basis of consent or acquiescence.

Our team of specialist child abduction lawyers can assist. Please contact Serena Sandhu at serena.sandhu@osborneslaw.com or on 020 7485 8611 and ask to speak to Serena Sandhu or Ryan Caddell. Otherwise, you can contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811