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In Baxter v. Baxter,
423 F.3d 363 (3rd Cir., 2005), Henry G. Baxter filed a petition in the
District Court seeking the return of his five-year old son Torin to
Australia. The petition alleged that his wife, wrongfully retained Torin
in the United States under the Convention, and that Torin's custody
should be decided by an Australian court.
On September 2, 2003, Mrs. Baxter and
Torin traveled to the United States from Australia without Mr. Baxter.
They took up residence at the home of Mrs. Baxter's mother and sister in
Selbyville, Delaware. Within two weeks of her arrival, Mrs. Baxter
commenced a relationship with Kelly Stidham, a local contractor working
on a project at her mother's house. Fourteen days later, Mrs. Baxter and
Torin moved in with Mr. Stidham. A few days thereafter, Mrs. Baxter
telephoned her husband in Australia and demanded a divorce. Mrs. Baxter
and Torin have since been living in the home of Mr. Stidham.
Before September 2003, Torin and his
parents lived together as a family in Australia. Their lifestyle was
itinerant. During the first four years of Torin's life, the family lived
in several remote settlements in the Australian outback, and also spent
a year in Ireland. Mr. Baxter moved from job to job, and the family
moved from place to place. The Baxters' last home together was on
Bathurst Island, an aboriginal community in the Tiwi Islands, in
Australia's rugged Northern Territory. By all accounts, their stay there
was short and troubled. The community was beset with problems, including
petrol sniffing and domestic violence. The couple eventually decided the
environment was unsuitable for their child, and that Mrs. Baxter and
Torin should leave Bathurst Island and travel to the United States to
visit Torin's grandmother and aunt, whom the child had never met.
The District Court found that
Australia was the habitual residence of the child until the time of the
move to Delaware. The court noted that a purpose of the trip was to
explore the possibility of a permanent move, but found there was no
intent to resolve this matter until after Mrs. Baxter and Torin's
arrival. Nevertheless, the court concluded that Mr. Baxter had consented
to Torin's removal to the United States, defeating his claim for return
of the child under the Hague Convention. The Third Circuit reversed.
Mr. Baxter contended on appeal that
the District Court misapplied article 3 of the Convention by failing to
give proper consideration to his wrongful retention claim. The court
terminated its analysis after holding that Mr. Baxter consented to
Torin's removal from Australia at the time of his departure. It did not
address wrongful retention, even though this was the principal
contention of Mr. Baxter's petition. The crux of Mr. Baxter's appeal was
that his consent to Torin's trip to United States was conditional--given
under the assumption that the family would reunite at Christmas and then
in all likelihood return to Australia. He contended that his wife's
decision to retain Torin permanently in Delaware was unilateral and
breached his custody rights.
In holding that Mr. Baxter consented
to Torin's removal, the District Court relied on its finding that Mr.
and Mrs. Baxter "agreed it was in the best interests of the Child to
remove the Child to the United States." The court pointed to the
family's negative experience in the Tiwi Islands, the purchase of
one-way tickets, taking the family documents, and hiring the contractor
to enclose the porch of the house in Delaware as facts pointing to
consent to removal. But the court did not address the nature or scope of
Mr. Baxter's consent. Nor did it address whether Mr. Baxter consented to
or even contemplated his wife's permanent retention of Torin in
Delaware.
Mrs. Baxter contended that under the
Convention, once a court finds the petitioner has consented to the
child's initial removal, the inquiry ends and there is no need to
address retention. This argument is based on the text of article 13(a)'s
provision that a child need not be returned if the petitioner "had
consented to or subsequently acquiesced in the removal or retention."
The Court held that the argument
misreads the Convention. The words "removal or retention" refer to
whichever may be relevant to the case at hand, and create a multiple,
not alternative, obligation. In other words, the use of the word "or" in
article 13(a) of the Convention is not disjunctive in the sense of
indicating an alternative between mutually exclusive things. Article
13(a) does not provide that if a parent consents to removal of the child
for a period, under certain conditions or circumstances, that retention
of the child beyond those conditions or circumstances is necessarily
permissible. Article 3 proscribes wrongful removal and/or wrongful
retention, as applicable. The inquiry does not necessarily end with the
petitioner's consent to the child's removal. If the petitioner agrees to
a removal under certain conditions or circumstances and contends those
conditions have been breached, the court must also examine any wrongful
retention claim.
Mr. Baxter contended that the District
Court erred by interpreting the Hague Convention's affirmative defense
of consent in article 13(a) too broadly. The defense provides that "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 .. the person,
institution or other body having care of the person of the child ... had
consented to or subsequently acquiesced in the removal or retention[.]"
The District Court ruled that Mrs. Baxter proved by a preponderance of
the evidence that Mr. Baxter consented to Torin's removal to Delaware,
defeating his claim for return. The court misconstrued the consent
defense in this case.
The Court of Appeals held that the
defenses of consent and acquiescence under article 13(a) of the Hague
Convention are both narrow. The consent defense involves the
petitioner's conduct prior to the contested removal or retention, while
acquiescence addresses whether the petitioner subsequently agreed to or
accepted the removal or retention. Although the law construing the
consent defense under the Convention is less developed, the defense of
acquiescence has been held to require "an act or statement with the
requisite formality, such as testimony in a judicial proceeding; a
convincing written renunciation of rights; or a consistent attitude of
acquiescence over a significant period of time." Courts have held the
acquiescence inquiry turns on the subjective intent of the parent who is
claimed to have acquiesced.
Consent need not be expressed with the
same degree of formality as acquiescence in order to prove the defense
under article 13(a). Often, the petitioner grants some measure of
consent, such as permission to travel, in an informal manner before the
parties become involved in a custody dispute. The consent and
acquiescence inquiries are similar, however, in their focus on the
petitioner's subjective intent. In examining a consent defense, it is
important to consider what the petitioner actually contemplated and
agreed to in allowing the child to travel outside its home country. The
nature and scope of the petitioner's consent, and any conditions or
limitations, should be taken into account. The fact that a petitioner
initially allows children to travel, and knows their location and how to
contact them, does not necessarily constitute consent to removal or
retention under the Convention.
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