Warren Dean Smith v Lisa Vivienne Smith

The parties were South African citizens married in Cape Town in April 1996. In September 1996, they moved to the United Kingdom where the appellant obtained a 5-year ancestry visa and the respondent obtained a dependent visa. Two children were born in the UK: Jay (born 24 June 1997) and Joshua (born 11 September 1998). The marriage deteriorated by late 1998. In December 1998, the appellant consulted a solicitor regarding divorce and in January 1999 employed Ms Dorfman as an au pair (with whom he later cohabited). The parties agreed that the respondent would take the children to South Africa for a two-month holiday from 19 January 1999 with a scheduled return on 21 March 1999. On 17 March 1999, the respondent advised the appellant she would not return to the UK with the children and commenced divorce proceedings in Cape Town on 25 March 1999. The appellant initially applied under the Hague Convention through the Lord Chancellor's Department on 19 April 1999, but after consulting South African attorneys in early May 1999, withdrew the application and entered into settlement negotiations. On 4 June 1999, following further advice, he launched fresh proceedings seeking return of the children under the Hague Convention.

• Whether the appellant had acquiesced in the wrongful retention of the children in South Africa within the meaning of Article 13(a) of the Hague Convention
• Whether the court should exercise its discretion to order the return of the children to the United Kingdom given the lapse of time
• The proper interpretation of 'acquiescence' under Article 13(a) of the Hague Convention
• Whether incorrect legal advice received by a wronged parent negates acquiescence

The appeal was dismissed with costs. The Court refused to order the return of the children to the United Kingdom.

Acquiescence under Article 13(a) of the Hague Convention requires that the wronged parent had knowledge, at least in general terms, of their rights under the Convention and that the removal or retention was unlawful, and that the wronged parent in fact went along with or accepted the wrongful retention. Acquiescence is a question of actual subjective intention to be determined from all circumstances, with greater weight attached to outward conduct than to subsequent self-serving evidence of undisclosed intentions. Once acquiescence is established, it unlocks the door to the court's discretion under Article 13, and that discretion must be exercised in the context of the Convention's approach. A subsequent change of mind does not negate prior acquiescence. Incorrect or inadequate legal advice does not necessarily negate acquiescence where the wronged parent was aware of their Convention rights and the unlawfulness of the retention.

The Court noted that Lord Browne-Wilkinson in Re H recognized a qualification to the subjective approach: where a wronged parent's outward conduct led the abducting parent to believe the wronged parent was not insisting on summary return, no developed system of justice would permit the wronged parent to resile from that stance as it would be unjust. The Court also observed (without deciding) that it may be unfair to require a respondent to establish what was said in privileged conversations between the applicant and legal advisers. The Court made general observations about the importance of expedition in Hague Convention proceedings, noting that Article 1 contemplates prompt restoration of the status quo, Article 11 enjoins expeditious action, and Article 12's non-discretionary obligation does not apply after one year. The Court did not need to address the defence under Article 13(b) or constitutional issues arising from Article 20 and section 28(2) of the Constitution (referenced in Sonderup v Tondelli).

This is a leading South African case on the interpretation of 'acquiescence' under Article 13(a) of the Hague Convention on the Civil Aspects of International Child Abduction. The case clarifies that acquiescence involves an informed acceptance of the infringement of rights and requires awareness in general terms (though not precise knowledge) of legal rights. The judgment adopts the House of Lords approach in Re H that acquiescence is a subjective question to be determined from all circumstances, particularly outward conduct. It establishes that subsequent change of mind does not negate prior acquiescence, and that acquiescence merely opens the door to judicial discretion rather than mandating refusal of return. The case also emphasizes the importance of expedition in Convention proceedings, demonstrating that delays undermining the Convention's purpose of prompt return will affect the exercise of discretion even where acquiescence is established.