There are two major defenses for the denial of a Return Petition under
the Hague Convention. Located in Article 13, a party can argue that the
petitioner either “Consented” to the relocation of the child
from the Home Country or “Subsequently Acquiesced” to the
relocation of the child. This blog will discuss Subsequent Acquiescence.
The Court is empowered under the Convention to grant a Return Order, notwithstanding
the fact that a Respondent has met her burden of showing an Article 13
defense .i.e. the Wife argued that the Husband subsequently acquiesced
to the relocation of the child to the United States from Canada. The text
of the Convention provides that, even if a defense under Article 13 established,
a court “is not bound to order the return of the child.” Hague
Convention, ch. III, art. 13, para. 1. Article 13 does not require, however,
that the Court deny the Return Petition upon the establishment of a defense
under the Article, as it is a discretionary matter.
The Hague Convention places the burden on the party opposing return to
establish an Article 13 defense or exception to compulsory return of a
child, as required by Article 12 of the Convention. Hague Convention,
ch. III, art. 13, para. 1. ICARA, the enabling statute of the Hague Convention,
provides that the respondent must prove their defense by a preponderance
of the evidence. 42 U.S.C. §11603(e)(2)(B). The respondent has the
burden of showing, by a preponderance of the evidence that the child should
not be returned because of the exceptions set forth in Articles 12 and 13(a).
When terms contained in an international treaty are ambiguous, courts should
adopt the same general rules that govern the construction of contracts,
statutes and written instruments generally, unless the treaty instrument
expressly provides otherwise. The entire provisions of the treaty relevant
to the inquiry are to be studied, the words used are to be given their
natural and ordinary signification, a sensible and reasonable effect must
be given unless the words forbid, and the cognate rules of international
law and of the legislation of the government may be considered.”
Furthermore, it is well established that when interpreting a treaty, a
court should endeavor to construe its terms liberally in order to give
effect to its evident purposes, and that wherever possible a treaty should
be given a meaning consistent with the shared expectations of the contracting parties.
The defense of acquiescence has been described as being distinct from consent
insofar as it looks not to the Petitioner’s conduct before the child
was removed or retained, as does the defense of consent, but rather considers
whether “the petitioner subsequently agreed to or accepted the removal
or retention. Most courts, however, have required a showing of some formal
action, such as a written renunciation of rights, or a “consistent
attitude of acquiescence over a significant period of time” for
the establishment of an acquiescence defense.
Courts have found that the petitioner-parent’s authorization for
the child to travel with the respondent-parent is insufficient to establish
the defense of acquiescence. Such authorization has been found to be insufficient
to show acquiescence even where the abducting parent had authorization
to travel freely with the child. Similarly, acquiescence to permanent
relocation of the child cannot be inferred from the petitioner-parent’s
prior consent to the respondent-parent’s taking the child to another
country for a set period of time, for reasons other than a vacation.
Courts have also found that if the removal of the child was carried out
in a secretive manner, the defense of acquiescence cannot be established.
Likewise, it is unlikely that acquiescence may be shown where the parent
who removed the child did so without informing the other parent. Where
the removal of the child is deliberately secretive, it is “extremely
strong evidence” that the petitioning parent would not have consented
to the child’s removal. One court has even held that “deception”
on the part of the abducting parent precluded any acquiescence on the
part of the parent seeking the child’s return.
Additionally, several courts have held that the defense of subsequent acquiescence
is defeated by the fact, in and of itself, that the parent seeking return
of the child filed a Hague Convention petition. The filing of such a petition
is “inconsistent” with both consent and acquiescence.