SC v. LW

HCMP 1824/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1824 OF 2002

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J U D G M E N T

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Introduction

1. On 11 July 2002 I gave my ruling in this matter, dismissing the application with no order as to costs. I said at the time that my reasons would be given later. These are my reasons.

2. This is an application made by the plaintiff, the father, in terms of the Child Abduction and Custody Ordinance, Cap. 512. The Ordinance incorporates into Hong Kong law the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. In terms of his application, the father seeks an order returning his son, L, now two years and four months of age, to the jurisdiction of the courts of Belgium.

3. The father contends that in terms of the Convention the child was wrongfully removed from Belgium by the defendant, the mother, in March 2001 and brought to Hong Kong.

4. In addition or alternatively, the father contends that in or about December 2001 the mother returned with the child to Belgium but shortly thereafter wrongfully removed the child to Hong Kong for a second time.

5. While the mother accepts that her removal of the child from Belgium in March 2001 may have been wrongful, she denies that there was a second wrongful removal in or about December 2001. The mother opposes the father's application for the return of the child to the jurisdiction of the Courts of Belgium.

6. The mother's first ground of opposition is founded on the contention that after the removal of the child from Belgium to Hong Kong in March 2001 the father accepted that removal. In this regard, the mother relies on Article 13 of the Convention which reads (in part) :

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention..." [my emphasis]

7. Acquiescence is not a single concept. It may encompass active consent to the wrongful removal of a child after that removal has taken place or fall short of that and amount to no more than an acceptance of it. See, for example, Re A (Minors) (Abduction : Custody Rights) [1992] Fam 106 at 119.

8. Acquiescence under the Convention is not necessarily an acceptance that the abducting parent will now, by reason of the abduction (which includes wrongful retention) exercise sole rights in respect of the child, it need only be an acceptance by the wronged parent that he or she will not pursue the remedy provided by the Convention; namely, that of the child's prompt return. A wronged parent who accepts the fact of a wrongful remove may nevertheless pursue rights of custody, access and the like in the courts of the jurisdiction to which the child has been removed.

9. As I understand the mother's case, it is that in the months following the child's removal from Belgium, whatever his original intentions may have been, the father came to accept the status quo; namely, that the child was now in Hong Kong. To express it another way, he made a choice not to pursue his Convention remedy. The mother cannot point to express words or actions to prove the father's acquiescence. She is unable to point to a specific date when it took place. She is able, however, to point to an extended period of time of some seven months and to say that during that period of time, on all the evidence, the father must have come to accept the status quo.

10. The mother's second ground of opposition is founded on the contention that the father has commenced his proceedings seeking the return of the child more than one year after her removal of the child from Belgium; the child is now settled in his new environment in Hong Kong and accordingly, in terms of Article 12 of the Convention, this Court should decline to order the return. The relevant portion of Article 12 reads :

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." [my emphasis]

11. The mother's two grounds of opposition are firmly rooted in the historical circumstances of this case. It is essential therefore to examine the facts in some detail.

The historical background

12. The father was born in Hong Kong but immigrated to Belgium with his family when he was a young boy. The family set up a restaurant business in the town of Louvain (I use the French spelling) and the father now manages that business, his parents being retired. It is apparently a busy and successful business and not surprisingly takes up a good deal of his time. The father is a citizen of Belgium.

13. The mother was born and raised in Hong Kong. Her family is here. She and the father met in Hong Kong. She joined him in Belgium and they were married in that country in 1994.

14. Their son, SC, known as L, was born in the town of Louvain on 13 February 2000.

15. Unhappy differences arose in the marriage. They call for no examination in this judgment. Suffice to say that towards the end of their lives together the mother and father occupied separate beds although they continued to reside under the same roof.

16. On 5 March 2001, without informing the father, the mother flew out of Belgium with the child and returned to her family in Hong Kong.

17. When the mother removed the child from Belgium on 5 March 2001, he was just over one year old and until that time had been raised in Belgium. It is not disputed that immediately before his removal he was habitually resident in Belgium.

18. According to the law of Belgium, when parents live together they share custody of their children. In this regard the law of Belgium is no different from that of Hong Kong. Title IX, Article 373 of the Belgium Civil Code commences :

"When the parents live together, they shall exercise authority over the person of the child jointly."

Accordingly, whatever the state of happiness of their union, it is not disputed that, at the time the mother removed the child from Belgium, she and the father were living together and sharing custody of their child.

19. As I have said earlier, the mother has accepted that under the Convention her removal of the child from Belgium on 5 March 2001 may have been wrongful.

20. Article 1 of the Convention (which has not been incorporated into Hong Kong law) succinctly states the aims of the Convention. In respect of the abduction of children it commences :

"The objects of the present Convention are -

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State..."

What constitutes a wrongful removal is defined in Article 3 of the Convention in the following terms :

"The removal or the retention of a child is to be considered wrongful where -

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."

21. It is accepted that the mother's removal of the child from Belgium to Hong Kong on 5 March 2001 was in breach of the father's rights of custody over the child, rights that were being exercised by him at the time. It is further accepted that, immediately before the mother's removal, the child's country of habitual residence was Belgium. I am satisfied, therefore, that the mother's removal of the child from Belgium in March 2001 was a wrongful removal in terms of the Convention.

22. Of course, the central disputes in this matter centre on what happened after that wrongful removal.

23. Although the father had no notice of the mother's removal, within a matter of a day or so he knew that she and the child were back with her family in Hong Kong. He was therefore able to contact her - and did so - by telephone.

24. In the weeks following the mother's departure, certainly for the remainder of the month of March, it is evident that the father took active steps to protect his rights in respect of the child.

25. On 14 March 2001, the father wrote to the Director of Immigration in Hong Kong to advise that proceedings would be taken to ensure the return of his son to Belgium and to state that he objected to any application made by the mother concerning settled residency in Hong Kong for the child or the issue of an identification card to him. The letter reads (in part) :

"I am the father of the abovenamed baby and write to seek your assistance to reject any application in connection with the abovenamed baby for the extention of stay in Hong Kong and/or for verification of eligibility for Hong Kong permanent identity card.

The above request arises as my wife S, (19/06/73 Hong Kong) brought (in a real strict sense, kidnapped) my son (just one-year old) from Belgium to Hong Kong on 5th March 2001. The case was reported to the Police in Belgium (Leuven) file : 7190/01 by officer Haegeman Claus.

Likely, my wife will apply for my son for the extension of stay in Hong Kong upon expiry of visitor's entry permission, that is strongly objected by me. I, in the meantime, will arrange proper proceedings to get my son back to Belgium.

...

Thank you in advance for your kind consideration. My family and I eagerly hope to have my son back to Belgium." [my emphasis]

26. The father also solicited the support of a relative in Hong Kong, a cousin, Ms WYK, known as B, who herself wrote to the Director of Immigration. Her letter of 19 April 2001 (in part) reads :

"The original Court Order from Belgium's court will be issued by next week regarding the custody of the subject child belongs to Mr SC, and we will forward the Court Order to you as soon as we can in order to support the above objection. Also, proper procedure will be followed in order to bring him back to Belgium where he was born.

Thank you very much for your kind assistance. Should you need any further information, please feel free to contact me at any time."

27. The mother, who never knew of these communications with the Immigration Department, was sceptical of their authenticity. Mr Clough, her counsel, suggested that the father had not made full disclosure of relevant documents in respect of communications with the Department and the copy letters placed into evidence should be given little or no weight. I am satisfied, however, that I can give due weight to them. I see no need for the father to have sought exhaustive discovery from the Department so that everything in the relevant file could be placed before this Court. Convention proceedings are meant to be speedy, indeed summary in nature. In any event, the father and his cousin have affirmed to the authenticity of the letters and the cousin, in a further affirmation, has supplied a number of details to underscore that authenticity. In this regard, she has said :

"Thereafter, I did personally follow up the matter by telephoning the Immigration Department on various occasions. The officer who handled the matter was one Miss C of the Immigration Department. Her telephone number and fax number were 2829 3956 and 2110 9085 respectively. It was confirmed by Miss C that she had received my aforesaid letter and that the reference number of the Immigration Department in relation to this matter was RNCS 101117-01."

28. As to the meaning and intent of the two letters written to the Director of Immigration, they reveal that the father was aware of the fact that procedures existed to bring his son back to Belgium and that it was his stated intention to make use of those procedures. But as it transpired no such proceedings were instituted until late January of this year. In his affirmation of 28 June 2002, the father says that after the granting of the order by the Justice of the Peace he understood that the Belgian immigration authorities would be informed and told to give effect to the order. That is different, however, from proceedings addressed to the Central Authority of Hong Kong under the Convention. The question must therefore be asked : why the delay in seeking the child's return?

29. The father did not encounter any difficulties in Belgium. In the month the mother removed the child, he reported her departure to the local civil authority and also, with the assistance of professional legal advice, filed a petition with the Justice of the Peace in Louvain. The petition was made ex parte, the mother having no knowledge of it. The relief obtained by the father in terms of that petition is evident from the face of the order made by the Justice of the Peace. The relevant parts of the order read :

"...

Whereas the explanations provided by the petitioner show that the understanding between the spouses is seriously disrupted.

Whereas it is obvious that his wife left the marital home and is currently residing with the minority age child in Hong Kong, possibly with another man.

Whereas, in these circumstances, it is necessary to take following urgent and provisional measures...

We, Justice of the Peace of the district of Louvain, ruling in default and in first instance :

Suspend the obligation of living together existing between the parties authorise Mr SC to reside separately at the address Tiensesteenweg no. 91 in 3010 KESSEL-LO and prohibit Mrs LW from entering his home, on penalty of being evicted therefrom, if necessary with the assistance of the public authorities.

Award the exclusive custody over the minor child of the parties L, born on 13 February 2000, to Mister SC and declare therefore, insofar as necessary for legal purposes, that the child must reside with the father and have his domicile there." [my emphasis]

30. It appears that in terms of Belgian law - at least the father was so advised - it is not necessary to effect personal service of orders of the kind obtained by him. Service was effected at the matrimonial home which the mother had already left. She therefore received no notice of service even though the father knew where she was staying in Hong Kong.

31. Mr Clough has again criticised the father for not making full disclosure of what went before the Justice of the Peace. Mr Clough's concern, as I understand it, is that the petition itself has not been discovered nor any documents in support of it. But, in my judgment, little turns on that. What is relevant is the fact that the father sought the custody of his son, at least on a provisional basis, and was awarded that custody. The authenticity of the order itself is not challenged.

32. The order obtained by the father from the Justice of the Peace may be seen as a preliminary step to instituting proceedings under the Convention but, as I have said, the father did not institute proceedings until late January of this year.

33. While events of considerable moment took place in November and December 2001, the evidence shows that from about mid-April to about mid-November of that year - a period of some seven months - the father took no formal steps to secure the return of his child.

34. The Convention, of course, is an international instrument designed to bring about the 'prompt' return of children to their country of habitual residence. Article 1 uses that exact description. Procedures under the Convention are summary in nature. The need to restore the status quo ante with the minimum of delay underscores the purpose of the Convention. As the authors, Beaumont and McEleavy, say in their leading work on the Convention (The Hague Convention on International Child Abduction, Oxford University Press) :

"... the longer a child is allowed to remain unopposed in its new place of residence, the greater the ties it will develop and the more integrated it will become. In such circumstances a summary return could merely replicate the deleterious effects of the initial removal or retention."

35. How then does the father explain his apparent inaction - his seeming passivity - over this extended period of some seven months from mid-April to mid-November?

36. It is the father's case that this extended period of time was taken up with 'on-going' and 'active' negotiations between himself and the mother as to the return of the child to Belgium. According to the father, there was no question of reconciliation between himself and the mother. The marriage was ended. All he sought was the return of the child. In his affirmation of 18 June 2002, the father has explained matters in the following terms :

"During the period between March to November 2001, the Defendant and I still maintained constant telephone contacts when on-going discussions over the future arrangements for the Child were actively taken place. In addition, the Defendant had on divers occasions requested me to allow her to come back and stay with me in Belgium and agreed to bring back the Child. Since I no longer had any trust in the Defendant, her requests were not acceptable to me. I frankly told her that I would only want the Child to be returned to Belgium under my custody as I was convinced that he would be brought up in a better environment in every aspect in Belgium as compared to Hong Kong. In light of these on-going discussions and with a view to resolving this matter amicably, I did not take any further steps in enforcing the said Order during this period." [my emphasis]

37. While the Convention in its language emphasises the need for prompt action, it does not demand that a parent must act immediately and through formal channels. See, for example, H v H, a decision of the High Court of New Zealand [1995] 13 FRNZ 498 in which Greig J said :

"It is never the case that a parent must act immediately. There must always be time for consideration. I think it can be appropriate that that might be quite a long time before any steps were taken if it was thought that some conciliation or some other means might be achieved short of this forcible judicial procedure."

38. In the present case, however, the father does not condescend to give any description of the nature and course of the negotiations that he had with the mother concerning his son's return to Belgium. No mention is made of how optimistic he was of success at any one time or how pessimistic he was at another. All the father condescends to say is that he was in constant telephone contact with the mother concerning the child's return. On his evidence, therefore, over a period of some seven months, nothing more than telephone discussions took place, a prolonged set of discussions with presumably no successful conclusion in sight.

39. At no time during these seven months of discussions did the father reveal to the mother that he had obtained an ex parte order for the custody of their child from the Justice of the Peace in Louvain nor that he had been in communication with the Director of Immigration to best ensure that the child was not allowed to achieve a settled status in Hong Kong. At all times he kept these matters secret from the mother. The father has said that he wished to resolve matters amicably. He was afraid that if he informed the mother of his early actions he would never be able to persuade her to return the child voluntarily. What he has not said, however, is how long he was prepared to delay before he revealed his early actions to the mother or resorted to the remedy of return available to him under the Convention.

40. For her part, the mother does not accept that there were any on-going discussions of the kind spoken of by the father. In her affirmation of 26 June 2002, she has said :

"During the period between March and November 2001 there was little contact between the Plaintiff and myself. I never sought reconciliation and the Plaintiff never asked me to bring L back... He was well aware that there was no question that I would accept that he should have custody of L and never once did he propose that I should arrange for L to go back to Belgium to be in his custody."

41. The maternal grandmother, Madam CK, although not a party to the telephone conversations between her daughter and her son-in-law, did apparently have occasion to speak to her son-in-law on the telephone and, in so far as she is able, supports her daughter's version of events. In her affirmation of 27 June 2002, she has said :

"After the Defendant [the mother] returned to Hong Kong from Belgium with the child in March 2001, she had a couple of telephone conversations with the Plaintiff. I did talk to the Plaintiff once in about May 2001, trying to pacify the disputes between the Defendant and the Plaintiff. I recall the Plaintiff was very upset that the Defendant was still complaining about how she was badly treated by the Plaintiff's family and how miserable her life was in Belgium. However, the Plaintiff was only concerned with putting the blame on the Defendant and expressing his anger at her. There was never any concern over the Child whatsoever. Since then, I have never received phone call from the Plaintiff and as far as I know, he never requested to even speak to the Child whatsoever."

42. The mother has not referred to anything specific either said or done by the father between April and November 2001 which led her to believe that he had accepted the status quo. It is rather her contention that she was led to believe that he had come to accept the status quo because he showed what can only be described as disinterest and because on his part there was no assertive action to get her to return with the child : be that by persuasion, threat or legal action.

43. This takes matters through to November 2001. In that month the mother decided to return to Belgium to wind up her affairs there. She flew back alone, the child remaining in Hong Kong, and did not notify the father of her visit. If she had simply attended to her affairs and then flown back to Hong Kong the father (in all probability) would have known nothing of her visit. The mother, however, chose to contact the father. On the evidence, it appears that the decision was made for emotional reasons, the mother having visited old romantic places which reminded her of sweeter days. In her affirmation of 12 June 2002, the mother has spoken of her meeting with the father in the following terms :

"... I met the Plaintiff. He failed to mention the said order to me [the order of the Louvain Justice of the Peace]. He acted very sincere and polite and merely asked the condition of the said child. He asked me to bring the said child back to Belgium in Christmas. At that point of time, I thought that the Plaintiff was genuine in making amends and I acceded to his request."

44. It is the clear import of the mother's evidence that, as far as she was concerned, her agreement to return at Christmas was simply to allow the father to see his child. It was not intended to be a permanent return.

45. In her affirmation of 26 June 2002, the mother speaks of her reasons for agreeing to bring the child to Belgium at Christmas in the following terms :

"I did not want to reconcile but I did want to plan for the future. As mentioned in my previous affirmation, the Plaintiff was very sincere in asking me to a chance to meet L over the holidays. He never told me the existence about the said Order. He said that he was too tied up in his business and couldn't go back to Hong Kong to visit the Child. I eventually agreed to bring L for a holiday. It was clearly understood that this was simply for a holiday and that we would both be returning to Hong Kong after the Christmas holidays." [my emphasis]

46. The mother continued in her affirmation of 26 June 2002 :

"I wanted L to grow up knowing his father and was trying to encourage the development of their relationship.

...

At this time L was already happily settled with me and my family in Fanling. Our daily routine was established and he was developing well in a stable happy home environment. ... There was no way that I would have considered that it could be to L's benefit to grow up in Belgium in the custody of his father."

47. The father's version of what was agreed when the mother visited Belgium in November 2001 and/or shortly thereafter is different. The agreement was not to the effect that the child would be returned for a holiday, the agreement was that the child would be returned permanently. In support of his contention, the father placed into evidence a letter written to him by the mother a day or so before her departure from Belgium. The letter is in English, their shared written language, the father presumably not being fluent in Chinese characters. The letter is dated 8 November 2001. It begins :

"In fact, I did not expect to see you this time cause I don't want to fight with you again. I just don't want to get more worse with our relationship..."

The letter goes on to describe why the mother decided to contact him, speaks a little of her life in Hong Kong and then goes on, in an apologetic form, to explain why she had left Belgium with the child earlier that year. The letter concludes :

"So I think I'm gonna leave tomorrow, it's time to go back to work. Hope that we can still be friends. Whatever L is go with you or with me, I just want we can talk about this again. I know we both care about him so much. Hope we can see each other again and take care!"

48. The father has relied on the wording of this final paragraph to demonstrate that he had never abandoned his attempts to secure the return of his son to Belgium. On an ordinary reading of the paragraph, however, while it shows that during the course of their meeting or meetings in Belgium the future of the child must have been discussed, it is not proof that such discussions had been on-going since March or April. Indeed, on the mother's evidence, the issue of the child's future, not having been raised in any meaningful way earlier, could only have arisen when they came face to face again in Belgium.

49. Nor, in my view, does the final paragraph indicate any agreement on the wife's part to return the child to Belgium permanently. To the contrary, the words 'whatever L is to go with you or me, I just want we can talk about this again' indicate the likelihood of a conflict over the future of the child, one which the mother hoped would be amicable.

50. The father, however, is firm in his assertion that the mother agreed to permanently return the child to Belgium despite the fact that there was no possibility of a reconciliation between the parties themselves. In his affirmation of 28 June 2002 he has said :

"In fact, at the time when the Defendant returned to Belgium with the Child in December 2001, I was under the impression that the Defendant would honour her promise to allow the Child to stay. A pleasant relationship between the Defendant and I had been established at that time and she was quite happy to join us on the trip to Disneyland. It is true that I did not mention about the said Order either when the Defendant went to the Disneyland with me and the Child in December 2001. The reason again was that at that moment, I thought I had finally persuaded the Defendant to voluntarily return the Child to Belgium as a result of our previous discussions and that I did not want to do anything which might disrupt the consensus between the Defendant and I."

51. As for the Christmas visit, no action was taken by the Belgian immigration authorities when the mother arrived with the child. They were permitted to land without question and apparently moved into a hotel. Shortly thereafter, as the father has said in his affirmation, the parents and child visited France to spend time at the Paris Disneyland.

52. As to what occurred when they returned to Belgium, the parties differ. The mother says that the father, without warning, demanded that the child be left in Belgium with him, saying that he would collect the child in the morning. In fear that the child would be taken from her, the mother says that she fled Belgium with the child. The father says that, in terms of their agreement, the mother had consented to deliver the child into his custody in the morning but reneged on the agreement and for a second time wrongfully removed the child.

53. After this second removal, the father took active steps to secure his son's return under the Convention.

54. On 29 December 2001 - the day after the mother's precipitous departure with the child - the father made a report to the civic authority in Louvain, a branch of the police. The subject of his complaint was a refusal of 'visitation rights'. The record of the report (it is called an 'interrogation report') reads :

"I wish to file a complaint against LW for refusal of visitation rights.

I have been married to her since 1994, and we have together a son, L, born on 13/02/2000.

On 05/03/2001, I reported to your services that LW left our marital residence together with our son.

In the meantime, I have had telephone contact with her a few times with regard to our son; I knew, therefore, that she was in Hong Kong.

I have consulted an attorney in relation to the custody over my son.

I wanted to achieve a mutual agreement with LW with regard to L.

Up to the present, she has not complied with her commitments.

On 24/12/2001, LW came with L to Belgium in order to make an arrangement in this regard.

On 28/12/2001 she left her hotel around 0600 h without her luggage. I presume that she went back to Hong Kong."

55. The report, compiled by an inspector of police, is revealing in a number of respects, more particularly -

(a) The report, dated 29 December 2001, accurately states the date of the mother's original removal of the child from Belgium; that is, 5 March 2001, but then goes on to say :

"In the meantime, I have had telephone contact with her a few times with regard to our son..." [my emphasis].

The report is in translation but is certified as to accuracy by a court-appointed translator. While obviously allowance must be made for looseness of language, the phrase 'a few times' does not accord with the father's version of events adopted in these proceedings; namely, that there were constant, on-going discussions. The phrase accords more fully with the recollection of the mother and the maternal grandmother, that is, that there were just a few calls.

(b) The father has affirmed in these proceedings that the mother brought the child back to Belgium 'to honour her promise to allow the child to stay'. The report, however, does not speak of an agreement already reached, it speaks instead of the mother coming to Belgium with the child in order 'to make an arrangement'; in other words, just as the mother herself has said, to plan for the future of the child.

56. In addition to the report made to the local civic authority, at or about the end of January of this year, some three weeks or so after the mother had departed, the father completed the necessary formalities to enable the Central Authority of Belgium to institute proceedings under the Convention.

57. By letter dated 4 April of this year, the Central Authority of Belgium made a formal request to the Central Authority of Hong Kong to seek the return of the child in terms of the Convention, the date of the wrongful removal being given on 5 March 2001.

58. By the time the letter was dispatched from Brussels, calculated from 5 March 2001, the child had been in Hong Kong with his mother for a year and one month.

Acquiescence

59. Having earlier looked to the meaning of acquiescence under the Convention (paragraphs 7 and 8), I turn now to the manner of its determination.

60. At one time in English law acquiescence was to be classed either as active or passive. If active, clear and unequivocal words were required on the part of the wronged parent. If passive, inactivity in circumstances in which the wronged parent may reasonably be expected to act were required. The test in both instances was essentially objective. That manner of approach, however, was set aside by the House of Lords in Re H (Abduction : Acquiescence) [1997] 1 FLR 872.

61. Lord Browne-Wilkinson, in giving the judgment of the court, emphasised, the need for a common interpretation of the terms of the Convention between the various Contracting States. The Convention, as is today widely recognised, must not become the subject of formalistic (and often technical) interpretation by reference to national law. It must have the same meaning and effect under the laws of all Contracting States. In this regard, Lord Browne-Wilkinson said (page 881) :

"In my view these English law concepts have no direct application to the proper construction of Art 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 Art 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 developments."

62. International commentators have also emphasised the need to interpret 'acquiescence' on a sound, common sense basis with reference to the facts of each case. See, for example, Handling Hague Convention Cases in US Courts by Hon James D Garbolino (3rd Ed. National Judicial College 2000).

63. In Re H (supra), Lord Browne-Wilkinson distilled the principles applicable to the determination of acquiescence under the Convention to four in number. Those principles, in my judgment, should apply equally in this jurisdiction. Taken from the House of Lords judgment (page 884), they are :

"(1) For the purposes of Art 13 of the Convention, the question whether the wronged parent has 'acquiesced' in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) [1994] 1 FLR 819, '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'.

(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."

Was there acquiescence in the present case?

64. I am satisfied that the mother has proved acquiescence on the part of the father. The mother cannot point to a specific date when that acquiescence took place but a specific date is not necessary. A state of consent or acceptance may emerge over a period of time. It is sufficient, in my view, for the mother to have shown that between about April and November 2001 - some seven months - the father came to accept the wrongful removal of his son to this jurisdiction. The father knew of his rights in law to seek the return of his son to Belgium but, as the months wore on, I am satisfied on the evidence that he abandoned any intention of exercising those rights. He accepted the status quo and thereby tacitly consented to it.

65. Clearly, in the immediate aftermath of the removal, the father took steps to protect his rights as a father. Contemporaneous words and actions reveal an intention on his part to seek the return of his son to Belgium. Why then did he take no further action for a period of some seven months until the mother came to Belgium and on her own initiative contacted him?

66. The father, has said that he was in constant, on-going and active discussions with the mother over this period of time, not to seek reconciliation but simply to seek her agreement to return the child. However, the record of his own report to the Louvain police made on 29 December 2001 contradicts this, speaking only of 'a few' telephone calls with the mother. The report (a contemporaneous document) supports the recollection of the mother and the maternal grandmother that the father was not in constant contact and only made a limited number of calls to Hong Kong.

67. Assuming, however, that the father was in constant contact with the mother over this seven month period with the aim of securing the prompt return of this son, what was it that made him decide to keep discussing matters with the mother rather than - at some stage within that seven months - determining that continued talks were fruitless and that he must pursue his legal rights by formal means? There is no answer. The father speaks only of the communications and the fact that he rejected any suggestion on the part of the mother of a reconciliation. He says nothing of why he persisted in what must, in the absence of evidence to the contrary, over a period of months quite patently have become arid discussions.

68. The duration of any delay, while a factor in determining whether the wronged parent has or has not acquiesced, cannot, except in rare cases, be determinative. For example, in Re H (supra) the delay had also been one of seven months but, on the facts, the House of Lords held there had been no acquiescence on the part of the father, the wronged parent. In that case, however, the parties were strict Orthodox Jews obliged by their religion to seek the assistance first of a religious court. That religious court (a Beth Din) issued a number of summonses which were ignored by the mother who had abducted the three children of the marriage. When the father became aware of his rights under the Convention and was permitted by the Beth Din to pursue his civil remedy, he did so without delay. Clearly, on a common sense view of the facts demonstrated in evidence, the father had not at any time consented to or accepted the wrongful removal of his children.

69. There may be many reasons for delay. The whereabouts of the child may not be known, the child may be in a non-Convention country, the requesting Central Authority may delay, wrong legal advice may be obtained (see, for example, Re K [1995] 1 FLR 977, page 987), the parties may be using a conciliation agency or attempting to settle their differences by negotiation.

70. In the present case, however, while in the wake of the mother's removal of the child there may have been telephone contact during which the subject of the child's return was raised, I do not accept that such negotiations endured, as the father asserts, on an on-going basis for as long as seven months. If that was the case, a time must surely have been reached when the father, if he wished for meritorious reasons to employ the Convention, must have known that discussions were taking him nowhere and that he had no option open to him other than to seek a remedy under the Convention. But the father speaks of no such time.

71. I do not believe on the evidence that it would be wrong to draw the inference that if the mother had not gone to Belgium in November 2001 and herself contacted the father, the inactivity on the part of the father would have extended over that month too.

72. In my judgment, the only reasonable inference to be drawn from the father's inactivity, indeed the single, compelling inference, is that, while initially he may have been determined to seek the return of his son, over a period of time he came to accept the status quo and made a choice not to assert his rights seeking a prompt return.

73. As to events in November 2001 in Belgium when the parties met again, it is natural that a central concern should be the future welfare of their child. But there is no evidence to support the father's contention that at about that time the mother agreed to return the child permanently to Belgium. To the contrary, the mother has demonstrated that the return of the child at Christmas was for a visit only. Why else in her letter of 8 November to the father would the mother write in terms that make it clear the future of the child is not yet agreed? Why else would the father in his report to the police speak of the mother's refusal of 'visitation rights'? Why else would he have said that the mother had come to Belgium in order to 'make arrangements'?

74. When the mother removed the child from Belgium on or about 28 December 2001 to evade his demand that the child be given into his custody, the father may then have changed his mind and resolved to seek a return based on the mother's original removal of the child in March. But, in my judgment, the father, having acquiesced in respect of the original removal, was not then in a position to withdraw it. Although there may be cases in which particular circumstances may lead to another conclusion (for example, if consent is given in circumstances of emotional trauma and then timeously withdrawn), the authorities are consistent in holding that, once given, acquiescence cannot be withdrawn. See, for example, Re A [1992] Fam. 106 or Levesque v Levesque, United States District Court for the District of Kansas, 816 F. Supp. 662 (1993).

75. In respect of the father's acquiescence, even if I am wrong in finding that he did acquiesce in fact, I am satisfied in this case that the exception (Lord Browne-Wilkinson's fourth principle) must apply. In my view, it is plain that, by his inaction over such a lengthy period of time, the father led the mother to believe that he was not and would not seek the summary return of the child. As such, the father's inaction in this matter is inconsistent with the fundamental objective of the Convention; namely, the securing of a prompt return, and justice requires that the father be held to have acquiesced.

76. The fact (or presumption) of acquiescence is not, of course, an absolute bar to the return of the child to Belgium in terms of the Convention. In terms of Article 13, a discretion is still vested in the Court. In the present case, however, I do not think it is appropriate to exercise that discretion in favour of the father. The child is a young child. He has been outside of Belgium now for almost half of his life. The mother too, his primary carer since birth, has been away from Belgium for an extended period of time. The evidence shows that the child has a protected family environment in Hong Kong. I do not see how a summary return at this time can advance the objective of the Convention or be in the best interests of the child.

Did the return of the child to Belgium restore the father's rights under the Convention?

77. I am satisfied that the mother's return of the child to Belgium over the Christmas period of 2001 did not act to restore the father's rights under the Convention. Once the father had given his acquiescence to the mother's wrongful removal of the child in March 2001, in the circumstances of this case, his remedy under the Convention fell away.

78. If the child had been returned to Belgium at Christmas 2001 to take up permanent residence, and there was evidence that Belgium had again become the child's country of habitual residence, then a further removal in breach of the father's rights of custody would have been a wrongful removal under the Convention. But, as I have found, there is no such evidence.

79. Acquiescence is not a tactical tool to be employed in a conflict between parents residing in different Contracting States, to be given and then retracted or, once given, to be used as a snare. The Convention, it must be remembered, is an international instrument designed in the interests of children generally. In the present case, the visit at Christmas was, on the evidence, a visit only and accepted as such by both parents. It was an opportunity for the father to see his son and for the parents perhaps to discuss their child's future. The terms of Convention do not apply to that visit.

The alternative defence under Article 12

80. For the reasons given in the body of this judgment, I am satisfied that the father's application, by reason of his acquiescence, must be dismissed. There is, therefore, no need for me to look to the mother's defence under Article 12.

My order

(1) The application is dismissed.

(2) There is no order as to costs save that there shall be legal aid taxation.