FD25P00134 - [2025] EWHC 2502 (Fam)

I am concerned with three children: a boy, F, born in December 2015 now age 9 years 7 months, a girl, G, born in February 2017 now age 8 years 5 months, and another boy, H, born in October 2018 now age 6 years 9 months. All three of them were born in Ecuador and had never left that country before their father flew them to London on 3 April 2024 where they have remained since. The applicant is their mother (“the mother”) and the respondent is their father (“the father”). By an application issued by this Court on 20 March 2025, the mother seeks the summary return to Ecuador of the children pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”).

At a without notice hearing on 20 March 2025, the father was directed to serve three documents: an Answer specifying the article(s) of the 1980 Convention he relied upon and the information in support of each defence, all evidence he intended to rely on in response to the mother’s summary return application, and a schedule with any protective measures he sought. At the date of that order, the mother did not know where the children were. Location orders were made. The children were located on 4 April 2025. The father was granted Legal Aid. His solicitors came on the record on 8 May 2025.

Time for compliance with the March order was extended but the statement was served late, on 21 May 2025, albeit in time for the pre-trial review the following day. No Answer was served. The father did not serve a schedule of protective measures but in his statement, he expressly stated that he accepted those offered by the mother. He did not ask for any additional measures. In two discrete paragraphs of his statement, the father stated that he accepted that the mother did not expressly consent to his removal of the children from Ecuador at the time he removed them.

The pre-trial review on 22 May 2025 was conducted by Mr Justice Peel. The father was represented by counsel. In lieu of compliance with the direction to file an Answer, the order recited that the father confirmed at the hearing that notwithstanding the assertions in his witness statement about consent, he now sought to rely on the defences of consent, acquiescence, non-exercise by the mother of the rights of custody, and Art 13(b). The same recital recorded that the father took no point about the enforceability of the protective measures offered by the mother, and his position, with which the court agreed, was that no expert evidence was required in that regard.

A final hearing was listed to commence on 9 June 2025. For reasons unrelated to the father, it had to be adjourned. Mr Justice Williams made an order which recorded the father’s indication that “he would only seek to defend the application on the basis of (a) acquiescence and (b) Art 13(b)”.

At the final hearing, the mother was represented by Mr Frankie Shama, counsel. Mr Jonathan Rustin, counsel, who had had no prior involvement with these proceedings, represented the father. Each provided an excellent skeleton argument. The mother attended remotely from Ecuador and the father was present in court in person. Both parties were assisted by interpreters. I had a bundle of 324 pages containing application documents, orders, a statement from the mother supporting her application, a statement from the father in response, a statement from the mother in reply, and a high quality Cafcass report dated 22 May 2025 completed following in person interviews with each of the children separately.

At the beginning of the hearing on 21 July 2025, Mr Rustin explained that there had been a change of position since the hearing on 9 June 2025. The father did now wish to rely on the defence of consent, in addition to acquiescence and Art 13(b). He continued to accept that the mother was exercising rights of custody when he removed the children to England.

The father applied for permission to adduce oral evidence on the ground that there was information, not contained in his statement, about conversations he had had with the mother’s uncle relevant to the defence of consent. He also wished to say more about a February 2022 document which he asserted was evidence that the mother had given him her unambiguous consent to him removing the children from Ecuador at any time of his choosing in the future. The father’s explanations for his late change of position on consent, and consequent wish to adduce new evidence, when the March Order had directed him to serve a statement containing all the evidence he wished to rely on, were not particularly satisfactory. However, we had two days and interpreters available, and that permitted time for oral evidence to be given and for the mother’s team to take instructions. There was no real opposition from the mother. I granted the father’s application to rely on the defence of consent and agreed to hear his oral evidence on that issue.

When that oral evidence was complete, I said to the mother that she was under no obligation to do so but if she wished, she too could give oral evidence. After a brief adjournment, she chose not to. The father then applied for her to be called. He submitted that the proper determination of the issues of consent and acquiescence necessitated that she be cross examined about conversations he said he had had with her uncle, and her evidence that she did not understand the nature of the February 2022 document, which she had signed. We had considered that document in some detail during the father’s oral evidence. It said nothing about relocation of the children to another country. Further, the father did not assert that the mother was aware of conversations he had had with her uncle. In those circumstances, I did not agree that it was necessary for her to be cross examined and I refused the father’s application that she be called for that purpose. Oral submissions were completed on 21 July 2025 and the hearing resumed the following afternoon.

The evidence disclosed a number of areas of disagreement between the parties. Most were not relevant to the issues that required determination. I record the evidence as provided to me, commenting only where necessary.

The mother was 19 when she met the father and is now 29 years. She was born and has always lived in Ecuador. She has an Ecuadorian passport (though she cannot currently locate it). The children are her only children.

The father is 56 years old. He has Ecuadorian and Spanish passports as well as settled status in the UK. He was born in Ecuador and spent the first thirty years of his life there before living in Spain between 1998 and 2008. In Spain, he met W and they had two children (I was told that they married and remain married). The father, W and their two children moved to London in 2008 (his mother had relocated there from Spain in 2006). In 2013, he returned to Ecuador to open a restaurant business. He met the mother when she applied to work at the restaurant and he hired her. They lived together for around four years during which their first two children were born. During the last seven years he has made various trips to Ecuador, but he has been resident in England since June 2018.

It is the father’s case that in the first half of 2018, he had to close the restaurant and that left both of them without an income. He wanted the family to move to England for a better life. He says that together, they made an in principle decision that at some later time, they would settle as a family in England. He says they were still together as a couple in June 2018 when the mother was five months pregnant, and he went to live in London.

The mother disputes that. She says that they separated before he left. She believes he resumed a relationship with W soon after arriving in London and describes a conversation (which the father denies) where he said that if she wanted him to continue sending her maintenance money, she would have to accept the situation with W.

According to the father, his relationship with the mother lasted until September 2021 but was rekindled when he visited Ecuador in early 2022. He says they talked again about relocating the family to England for a better life. He says it was agreed between them that he would take the children to England with him and, after confirmation of their settled status, the mother would come and join them.

He says that in order to make that outline relocation plan a practical reality, on 4 February 2022, all five of them made the car journey of several hours each way from El Carmen to Quito, the capital city, where they went to a lawyer’s office. The lawyers prepared a document titled “Special Power of Attorney” which listed certain powers granted by the mother to the father. In his oral evidence, the father explained that the lawyers had expected to prepare the document later and see them at a second appointment at which it would be presented and signed. When he told the lawyers how far they had travelled and the difficulties in making the trip a second time, they prepared the document on the spot so that the process could be completed at one sitting. It is this document he relies upon as the mother’s express consent to his removal of the children to England permanently, at any time of his choosing, without informing her or seeking any final agreement from her. The mother says that she felt rushed and pressured into signing the document and did not understand what it said when she did so.

The document conferred on the father six powers listed A to F. In summary these were powers to: obtain visas from the Spanish embassy for the children’s travel, obtain alone any documents such as passports, visas, and birth certificates, purchase airline tickets for the children’s travel to Spain, obtain authorisation from a Notary to allow the children to travel to any part of the world, obtain visas for the children from the authorities in Ecuador, and obtain any documents necessary to enable the children to leave Ecuador.

In his witness statement, the father said that after he got back together with the mother in 2022, “we resumed our plans to relocate the family to England and arrange the Spanish citizenship of our children….the Mother authorised me to take the necessary steps for this, which was ratified in the presence of a public notary on 4 February 2022.” When, in oral evidence, he was asked how it was that the document did not ratify relocation of the family to England, if this was what the mother was consenting to, the father had no answer.

The father’s evidence was that in around 2022, she was struggling financially, had moved in with a new partner, and had arranged for the children to live with other family members. The boys stayed together with their grandmother and great uncle, and their daughter lived at a different property a short distance away with her great grandmother. The father asserts that at this point the mother stopped being the primary carer of any of the children and delegated all decision making power to these relatives. The mother denies that and maintains that there was no time when she was not the primary carer of all of the children. The father says that the children suffered harm as a result of being separated from each other. As I have mentioned, although in his witness statement the father stated that in April 2024 the mother was not exercising rights of custody, he did not make that assertion at the final hearing.

He says he became increasingly concerned about the children’s welfare and living conditions. In November 2023, he travelled to Ecuador in order to apply for visas for their travel to England. He said nothing to the mother about these applications. In his oral evidence, he explained that on arrival, he went to the great grandmother’s house and under protest from her, removed his daughter and took her to the house where the boys were staying. When the mother found out about this, she arrived at that house with the police. The father accepted that the mother made it clear to him that she did not consent to him moving the children from place to place without her knowledge or permission, and insisted that he stay at the house with the children overnight with her relatives, instead of taking them to a hotel as he was intending. The father said, “I spoke to the police and explained I was visiting but wasn’t taking the children anywhere.”

On 2 December 2023, the mother made a complaint to the police that the father had physically assaulted her (the father accepts a verbal but not a physical altercation). She exhibits to her statement a protection and assistance order made by a judge that same day which prohibited the father from approaching her and from persecuting or intimidating her directly or via third parties. He returned to England a few days later.

The father returned to Ecuador at the end of March 2024 with one way flights to London for the children. He said nothing to the mother about the tickets or his plans to remove them. He asked the mother if she would allow him to take the children on a trip to Quito. She agreed to that because she wanted them to have fun with their father, and she handed them over to him on 2 April. Early the next morning, she received a message from her daughter saying they were at the airport with the father and going to London.

The mother called the police who said they could not assist: the children were with their father and the distance was such that the plane would have departed before they arrived at the airport. Later, the Ecuadorian authorities told her that in order to get on the flight with them, the father must have had a document authorising him to travel to the UK with the children. She went to the lawyer’s office in Quito to obtain a copy of the February 2022 document and says it was only then that she understood what it meant. She asked the lawyers if she could revoke the document but was unable to afford the fee.

The parties agree that they were in contact in around June 2024. The father was asking the mother to sign documents that would enable the children to obtain Spanish citizenship. She refused to do so. Her refusal angered the father who blocked her from telephoning the children.

On 14 August 2024, the father issued an application in the El Carmen district of Ecuador seeking sole custody of the children. He told me this was an alternative means of achieving Spanish citizenship for the children that did not require the mother’s participation. In the application document, he tells the court that he is a resident of the El Carmen district of Manabi province. When I asked him on what basis he had informed the court in Ecuador that he was resident in that country, given his evidence in this court that he has been resident in London since June 2018, he had no coherent answer.

In the section of the application document containing the facts which are the basis of the claim, the father stated: “I appear before your authority for their custody to be granted to me since the mother of the aforementioned children handed them over to me voluntarily in January 2024, without the existence of a document confirming this. Notwithstanding, the mother entrusted me with the care and safeguarding of our children and since then I have been responsible for anything relating to their comprehensive development….” When asked about this, again the father’s answer was not comprehensible. He suggested that because the mother had left the children in the care of her uncle, and he had been in contact with the uncle who had knowledge of and agreed to the father’s plans to obtain visas for the children and to relocate them to London, that constituted a handover of the children by the mother to the father. That made no sense. Further, the father could not have received handover of the children and become responsible for their comprehensive development in January 2024 because at that time, they were in Ecuador and he was in England. The mother did hand over the children to him in early April 2024, not January, but she did so solely for the temporary and limited purpose only of him taking them on a short trip to the capital before returning them to her in El Carmen.

The father’s statement in these proceedings does not say that the mother handed over and entrusted the care of the children to him in January 2024, neither did he assert that in oral evidence. And the application document in the Ecuador court makes no mention of the February 2022 Power of Attorney document that the father belatedly relies upon in these proceedings as evidence of the mother’s consent to him relocating the children to England in April 2024.

It seems that the father’s August 2024 application in the Ecuador court was served on the mother in January 2025. That resulted in her getting access to a family law lawyer for the first time. On 25 February 2025, she made an application to the central authority seeking summary return of the children. Her solicitors in England issued her application in these proceedings as quickly as they could and before the one year anniversary of the children’s removal.

As to acquiescence, the father relies on what he says is the mother’s delay in making a return application. Text messages between the mother and father on 12 February 2025 indicate that the mother’s Ecuadorian lawyers were asking about the father’s international movements. The father says that acquiescence can be inferred from the fact that in those communications, the mother did not press for the children’s address or ask him to return them. On 17 July 2025 (two working days before the final hearing) she sent him a message that says, “I asked you to wait until they were older for you to take them there but you did it all wrong”. He relies on that as evidence of consent or acquiescence. Despite both parties providing evidence of lost phones and irretrievable messages, he says that the fact she cannot produce contemporaneous evidence that she communicated her objection to him taking the children is additional evidence that she agreed to, or went along with, him keeping them in London.

In his oral evidence the father focussed on his assertions that after the mother found a new partner, she lived separately to the children and delegated their care to relatives. He said that he was in close communication with the mother’s uncle who gave him information about the children’s activities and wellbeing. He said he made the uncle aware of his plans to obtain travel visas for the children and his plan to remove them to London. He did not suggest that the uncle had communicated those plans to the mother. What he was trying to get across was his thinking that as the mother had a new partner and had left the care of the children to the uncle and other relatives, and as he, the father, had told the uncle that he was going to remove the children to England, that state of affairs provided him with such permission as he needed to remove them to England.

In re-examination, Mr Rustin asked when was the last time, prior to 3 April 2024, that the mother confirmed to the father that she agreed to him taking the children to England. The father answered July 2024. When Mr Rustin tried again, the father said it was when she signed the February 2022 document. The father said that the children did not move to England then because they were too young. He said as of February 2022, he and the mother had not decided on a proper age at which they could leave: signing the document was a preparatory step in the direction of making future relocation a reality. He then said that by February 2022 the mother had started a relationship with a new partner. That oral evidence was inconsistent with his written statement where he said that he and the mother had come together again, in February 2022, and were discussing staged relocation of the whole family.

The fundamental purposes of the 1980 Convention are found in Article 1:

“(a)

to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b)

to ensure the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

In broad summary, Article 3 states that a removal and/or retention of a child will be wrongful where it is in breach of rights of custody in the country where the child was habitually resident at the time of removal and at that time, those rights were being exercised. Pursuant to Article 12, where a child has been wrongfully removed or retained in breach of the exercise of rights of custody, then unless one or more of the defences contained in the Convention is established: “the authority concerned shall order the return of the child forthwith.”

The defences relied upon by the father are found in Article 13:

The leading authority on consent is Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051. That sets out the following principles:

“(1)

Consent to the removal of the child must be clear and unequivocal.

(2)

Consent can be given to the removal at some future but unspecified time or upon the happening of some future event.

(3)

Such advance consent must, however, still be operative and in force at the time of the actual removal.

(4)

The happening of the future event must be reasonably capable of ascertainment. The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled. Fulfilment of the condition must not depend on the subjective determination of one party, for example, “Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child.” The event must be objectively verifiable.

(5)

Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract.

(6)

Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.

(7)

The burden of proving the consent rests on him or her who asserts it.

(8)

The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

(9)

The ultimate question is a simple one even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?”

In relation to acquiescence, I was taken to Lord Browne-Wilkinson’s judgment in Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72, at 90:

“(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) (Abduction: Acquiescence) [1994] 1 FLR 819 at 838]: "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 clearly 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.”

In Re J (Habitual Residence: Acquiescence) [2023] EWHC 3141 (Fam), Cobb J endorsed each of these authorities. At paragraph 46 he explained that:

“The ordinary case of acquiescence is one where the left-behind parent has subjectively consented to, or has gone along with, the continued presence of the child in the place to which they had been taken. The exceptional case is that identified by (4) [of Lord Browne-Wilkinson’s summary] where the left-behind parent did not subjectively acquiesce, but where their outward behaviours:

"… showed clearly and unequivocally that the left-behind parent was not insisting on the summary return of the child", (emphasis by underlining added),