FD25P00134 - [2025] EWHC 2502 (Fam)

In relation to Art 13(b) I was taken to a number of authorities including Re D (Abduction: Rights of Custody) [2006] UKHL 51, Re E (Children: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442. I was also taken to several authorities on protective measures: Re S (A Child) (Hague Convention 1980: Return to Third State) [2019] EWCA Civ 352, [2019] 2 FLR 194, [2019] Fam Law 1006 at 54 – 56, Re C (Children) (Abduction: Article 13 (b)) [2018] EWCA Civ 2834, [2019] 1 FLR 1045 at 40-45 and In Re P [2017] EWCA Civ 1677, [2018] 1 FLR 892 at 59-61.

The father submitted, relying on Re PJ, that valid consent can be given to removal at a future unspecified time. I was asked to find that there was a conversation about relocation to London in June 2018 and, upon further discussion in February 2022, the mother gave her verbal agreement to the whole family moving to England for a better life. It was submitted that although the February 2022 document was silent about permission to the father to relocate, it did expressly permit him to travel with the children internationally. The combination of that document, and the mother’s oral agreement to the father relocating the children to England, constituted consent to a future removal which was never retracted. The father was open about his relocation plans with the mother’s uncle and the mother was suffering financial hardship and struggling to raise the children. Although, in November 2023, the mother had called the police when she learned that the father had turned up without notice and sought to move the children from where they were staying, she had permitted the father to remain with them, and her actions did not indicate that she no longer consented to the father removing them to England and retaining them there.

As to acquiescence, it was submitted that the mother’s objective intention was to leave the children with their father in England. The lack of evidence that she voiced any objection to their removal spoke volumes in that regard. Acquiescence was evidenced by the message she sent to the father on 12 February 2025. It was submitted that it was not until after she sent that message that the mother started seeking legal advice about securing their return.

When making submissions about Art 13(b), Mr Rustin sought to give evidence about the father’s financial situation, none of which was to be found in his witness statement. I was told that he is in receipt of housing benefit, universal credit and child benefit. Benefits allowed him to work reduced hours and look after the children. However, he is still paying off a debt incurred when he borrowed money to pay for the children’s flights from Ecuador, and he does not earn enough to provide financial support for them in the event that they are to return there.

It was submitted that the children would face an intolerable situation were they to return. They would lose their father, who is their primary carer, and suffer a breakdown in their relationship with him. They would be living in impoverished circumstances. Their living arrangements would be unstable, especially if the mother had a new partner, separated the sibling group and left children with relatives, all of which would cause emotional harm. For the first time, it was asserted that the protective measures offered by the mother were insufficient to protect them from a risk of grave harm.

Finally, it was submitted that if a defence was made out, I should not order the children’s return to Ecuador because the children are happy and settled in their new lives in England where they are getting on well at school, learning English, and have a good social life. They could maintain a relationship with their mother via weekend videocalls pending her travel to London, which the father would fund.

Mr Rustin did not submit that if ordered to return the children to Ecuador, the father would refuse to do so. I was told that currently, there is not the money to pay for their flights and I was left with the impression that the father’s objection to returning them, if that was the court’s decision, was based on lack of funds not principle.

As to consent, Mr Shama submitted that taken at its highest, the father’s evidence did not meet the legal test of unequivocal agreement to removal. Advance consent must be operative at the time of removal. The father’s oral evidence about the mother arriving with the police in November 2023 when she learned from her mother that the father had taken their daughter was good evidence that she did not consent to him removing the children from the country. If the purpose of the February 2022 document was not only to permit the father to obtain Spanish citizenship for the children and travel documents for them, but also to authorise him to relocate the children to London, then the fact that the document says nothing at all about relocation and makes no mention of London, England or the UK, could not be explained. Any conversations the father had with the mother’s uncle were immaterial to the issue of consent. The uncle did not have rights of custody, and there was no evidence that the uncle had informed the mother of the father’s intention to remove the children from Ecuador, let alone that she had agreed to that.

As to acquiescence, the mother’s evidence that she had never agreed to the children living in England should be accepted. This was not a case where she had early access to legal advice and did not act upon it. As soon as she received advice she acted immediately. An absence of messages could not be relied upon where both parties stated that they had changed phones and messages had been lost. None of the evidence about messages suggested that the mother unequivocally agreed to the father retaining the children in England. The burden was on the father to prove this defence and he had not done so.

As to Art 13(b), Mr Shama submitted that the father’s case was neither reasoned nor reasonable and therefore the court could discount the assertion that a return would give rise to a risk to these children in these circumstances that they should not be expected to tolerate. I was reminded of the positive aspects of the Cafcass report and the absence of any complaint by the children that in Ecuador they had been separated from each other and had not lived with their mother. If separation was a concern, it could be addressed by an undertaking from the mother. The children had been happy at home and at school in Ecuador. A comparison of their material quality of life in that country and in London was a welfare matter for another day and another court.

As to the likelihood of the father not returning the children, that was an assessment for the court to make. The need to make it arose from the father taking them away from their primary carer, from whom they have been separated since 3 April 2024, and the only country they had ever known. I should be wary of allowing the father to gain a tactical advantage from his own wrongdoing and keep in mind the deterrent purpose of the Convention.

In submissions, Mr Shama described the father’s evidence as “all over the place” and, in relation to consent, “a patchwork of excuses”. In my judgment, that description was fair. Mr Rustin’s submissions were measured and ably made. But their force was vitiated by the father’s fluctuating position prior to the final hearing, and the inconsistencies and omissions in his written and oral evidence. The father was an unsatisfactory witness. It was clear that the interpreter was faithfully interpreting the questions asked of the father but the answers he gave were frequently non sequiturs. Questions had to be repeated more than once and broken down into short, simple phrases, before he would engage with them. I turn to each of the defences relied upon.

I am unable to accept the submission that the mother clearly and unequivocally consented to either the removal of the children to England or their retention here. The father says in his witness statement, and continues to urge upon me, that during his visit to Ecuador in early 2022 the mother gave him her clear, in person consent to him taking the children to England permanently. He says that their purpose in travelling to the lawyer’s office on 4 February 2022 was to obtain a notarised power of attorney evidencing her agreement to that plan, through which she conferred on him the power permanently to remove the children to London. I reject that evidence. Agreement to relocate the children to England is conspicuously absent from the list of powers the document says the mother grants him. Had the parents agreed that the father could take the children to live in London, the document would have recorded that. The obvious reason why it did not is that no such agreement existed. I accept that there may have been points in time in and after 2018 when the parents discussed a possible relocation to a country outside Ecuador. But I find as a fact that the mother did not say to the father, whether in February 2022 or at any other time, that she agreed to him removing the children to London to live there permanently.

If I am wrong, and the document did confer on the father the power to remove the children to England permanently, and was valid in terms of the mother’s understanding, or if she did verbally agree to their removal from Ecuador and retention in another country permanently in clear terms in 2022, that advance consent had to be operative and in force at the time of the actual removal. The mother’s actions in calling the police when, without her knowledge or agreement, the father moved the children within their home district in November 2023, is powerful evidence that, even if she had consented to him removing them from their home country in 2022, she did not consent to that in November 2023 or in March or April 2024. The father knew he did not have her consent to his plans when he asked her if he could take them on a trip to Quito in early April but did not ask her if he could take them to Quito airport and then to London. He did not ask for her consent to him taking them to live in London because he knew she would say no.

Anything that the father said to the mother’s uncle about his plans to move the children to London permanently is not relevant to the defence of consent. The father does not dispute that the mother was exercising rights of custody when he removed the children from Ecuador and it was her consent to that step at that time that he required, not her uncle’s. I agree with the father’s witness statement where he says: “I accept that the Mother did not expressly consent to the removal of the children to England at the time…”. The father’s removal of the children from Ecuador was without the mother’s knowledge or consent and was wrongful.

In my judgment, the father has not proved that the mother subjectively acquiesced or went along with the children’s continued presence in London. I accept her evidence that after the children’s removal she wanted to revoke the 2022 document and was only prevented from doing so by lack of money. I accept her evidence that after the father took them to London, she was dependent on him for telephone access to the children with whom she was desperate to maintain contact. If she did not demand that he return the children, it was because she was anxious about the repercussions, not because she was reconciled to them living in England. The parties agree that the father repeatedly asked her to agree to the children obtaining Spanish citizenship and that when she refused (a refusal that I find is consistent with lack of acquiescence) he blocked her contact with the children. When, as a result of the father applying to the Ecuadorian court for sole custody, the mother obtained legal advice, she acted immediately in seeking their return. None of the messages she sent in February 2025, or any part of her conduct generally, prior to issuing her application in this court showed clearly and unequivocally that she was not insisting on their summary return.

As to Art 13(b), I am unable to accept the submission that the children’s return to Ecuador, and to the care of their mother and their extended family there, will give rise to a grave risk of harm or otherwise place the children in an intolerable situation. Before 3 April 2024, life in Ecuador was all they had known. The father asserts that their quality of life in London is better than it was in Ecuador. In material terms that may or may not be so but there is no evidence at all that they lived in such abject poverty that a return to their old life would place them at grave risk of harm, or that their old life was, in fact, intolerable, if, which is unclear, that is what the father suggests. The reverse is true. The Cafcass report is clear evidence that the children’s life in El Carmen was a good and happy life. The children went to school, played football, had friends, were well looked after, and their mother took them on trips and made special food. Each child told the Cafcass officer that they missed their mum. The fact that she worked and looked to her family for childcare is the norm for very many families. There is no evidence that the family situation in 2024 put the children at risk, or caused them harm, let alone that it was one of intolerability.

Separation from their father was also the norm for the children who were entirely used to not seeing him for months on end because he lived in England. If, upon return to Ecuador, there is a gap in time when they do not have in person contact with their father, they are old enough to understand that and they will adapt quickly to their former life with their mother in Ecuador and their father in London. I accept that the children have put down some roots in England and attend school here. After more than a year away, returning to Ecuador will be a significant change for them. I do not accept that it is a change that will cause them harm: they have already demonstrated admirable resilience and flexibility, they will know that when they get to Ecuador they will see their mother again which is something they all wish for, and this will be a return to friends, maternal family, and familiar surroundings, climate and culture.

In summary, the Art 13(b) aspect of the father’s opposition to the application is, broadly, a contention that there is more money available in London than in Ecuador so that their life here is better. Determination of which country of residence is most in keeping with the children’s best interests is a matter for the court in Ecuador, not this court.

I record, so that it is clear, that both parties agree that at the operative time, the children were habitually resident in Ecuador and I have already set out that the father accepts that when he removed them from that country, the mother was exercising rights of custody. As none of the defences relied upon by the father have been made out, the 1980 Convention requires me to order the summary return of the children to Ecuador which I now do.

Had the father established either the defence of consent or acquiescence, I would have had a discretion as to whether to order the children’s return to Ecuador. I would have made a return order. The father has already commenced welfare proceedings in the court in Ecuador, and it is that court that is best placed to determine the welfare disputes about residence and contact. A return restores the children’s status quo and is the only way for the children to be reunited with their mother. She does not wish to travel to England (and is not in possession of a passport), she earns a very modest wage, does not speak English, and there is no evidence that if she lived here even temporarily whilst welfare decisions were made, that she would be able to find a job or work legally.

I was told by Mr Rustin that the father’s custody application in Ecuador has been stayed pending the outcome of these proceedings and that he needs to make an application to lift the stay. That, and the issue of the financial and practical arrangements for the children’s return, are issues for separate consideration.