FD25P00204 - [2025] EWHC 2672 (Fam)

The burden lies on M to establish the defence. She must prove:

The Article 13(a) defence of consent was considered by the Court of Appeal in Re G (Children) [2021] EWCA Civ 139,per Peter Jackson LJ:

“23.

Article 13 of the Convention provides exceptions to the obligation under Article

12 to order the return forthwith of a child who has been wrongfully removed from

the place of his or her habitual residence. One exception is consent:

"Notwithstanding the provisions of the preceding Article, 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

a)

the person, institution or other body having the care of the person of the child… had consented to or subsequently acquiesced in the removal or retention; …"

24.

Consent is an exception that is infrequently pleaded and still less frequently

proved. The applicable principles were considered by this court in Re P-J

(Children) (Abduction: Consent) [2009] EWCA Civ 588 [2010] 1 WLR 1237,

drawing on the decisions in Re M (Abduction) (Consent: Acquiescence) [1999] 1

FLR. 174 (Wall J); In re C (Abduction: Consent) [1996] 1 FLR 414 (Holman J); In

re K (Abduction: Consent) [1997] 2 FLR 212 (Hale J); and Re L (Abduction:

Future Consent) [2007] EWHC 2181 (Fam); [2008] 1 FLR 914 (Bodey J). Other

decisions of note are C v H (Abduction: Consent) [2009] EWHC 2660 (Fam);

[2010] 1 FLR 225 (Munby J); and A v T [2011] EWHC 3882 (Fam); [2012] 2 FLR

1333 (Baker J).

25.

The position can be summarised in this way:

(1)

The removing parent must prove consent to the civil standard. The inquiry is fact-specific and the ultimate question is: had the remaining parent clearly and unequivocally consented to the removal?

(2)

The presence or absence of consent must be viewed in the context of the common sense realities of family life and family breakdown, and not in the context of the law of contract. The court will focus on the reality of the family's situation and consider all the circumstances in making its assessment. A primary focus is likely to be on the words and actions of the remaining parent. The words and actions of the removing parent may also be a significant indicator of whether that parent genuinely believed that consent had been given, and consequently an indicator of whether consent had in fact been given.

(3)

Consent must be clear and unequivocal but it does not have to be given in writing or in any particular terms. It may be manifested by words and/or inferred from conduct.

(4)

A person may consent with the gravest reservations, but that does not render the consent invalid if the evidence is otherwise sufficient to establish it.

(5)

Consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties.

(6)

Consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid.

(7)

Consent must be given before removal. Advance consent may be given to removal at some future but unspecified time or upon the happening of an event that can be objectively verified by both parties. To be valid, such consent must still be operative at the time of the removal.

(8)

Consent can be withdrawn at any time before the actual removal. The question will be whether, in the light of the words and/or conduct of the remaining parent, the previous consent remained operative or not.

(9)

The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent. A consent or withdrawal of consent of which a removing parent is unaware cannot be effective.”

The nature and meaning of acquiescence is authoritatively explained in In re H [1998] 1 AC 72 per Lord Browne at 90E-G:

“To bring these strands together, in my view the applicable principles are as follows:

In P v P [1998] 1 FLR 630 Hale J (as she then was) said, at 635:

Acquiescence is not a continuing state of affairs; the person who acquiesces cannot subsequently change their mind. Once given, it cannot be withdrawn: Re A (Minors) (Abduction: Custody Rights) CA 1992 Fam 106 and Re L-S (Abduction: Custody Agreement: Acquiescence) [2018] 1 FLR 1373.

I am satisfied that M’s defence that consent was given prior to removal is not made out.

It seems to me that at its highest, M’s case is that F, in the phone call on 12 August 2024, shortly before departure, did not actively object to, or oppose, A being removed from Romania. M submits that by standing by and doing nothing, F can be inferred to have given consent. By saying that “he would return to Romania when he wanted”, she interpreted him as giving his agreement for A to relocate with her to England.

Against that, F makes a number of powerful points:

The burden lies on M to establish that consent was given to A being removed to England. In my judgment the totality of the evidence (including the Romanian court findings which are not determinative but carry presumptive weight) falls far short of clear and unequivocal consent.

In my judgment this defence stands and falls on (i) whether agreement was reached between M’s father (on M’s behalf) and F in September 2024 for A to remain in England and (ii) if so, whether that constituted acquiescence under either of the limbs referred to in Re H (a finding that F subjectively acquiesced to retention here, or a finding that even if he did not subjectively acquiesce, his words or deeds clearly and unequivocally led M to believe so).

In my judgment, neither limb is made out by M. Again, I remind myself that the burden lies on M to prove the defence. The context is F having consistently opposed A’s removal to England, and having sought A’s return to Romania. M must satisfy the court that thereafter F set aside his strong objections and clearly acquiesced in his retention. In my judgment she is unable to do so. There is, as I have indicated, no contemporaneous documentation to confirm the agreement. There is no evidence from the elders. I have set out above my findings on these events. I consider that each party had different discussions with the elders and left with a different understanding. There was no clear accord that A would stay in England. M’s father thought one thing, F another. M’s father’s aims were to secure a power of attorney and a degree of inter family peace. F wanted to be able to see A in Romania. It is hard to conclude that any agreement was reached about any matters, and in particular about A continuing to remain in England. At best they each had an understanding which did not align with the other’s. This seems to me to have been discussions genuinely aimed at trying to resolve differences which appeared to create some space for resolution but did not achieve anything definite; the sort of situation referred to in P v P (supra). I am far from sure that €13,000 was passed on by the elders to F, but even if it was, it was not, I am confident, part of an agreement for A to live in England; the payment, as some of M’s family members have said, seems to have been principally motivated by fear of F and a hope that he would cease his threatening behaviour. Overall, the picture is confused, unclear and uncertain.

A further submission made by M is that the Romanian court has acquiesced in the retention of A in England.

Counsel for M points to the wording of Article 13 of the 1980 Hague Convention:

“Notwithstanding the provisions of the preceding Article, 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 -

a)

the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.”

M submits that “institution or other body” can include a court. Holman J in NM v SM [2017] EWHC 1294 (Fam) and MacDonald J in London Borough of Haringey [2024] EWFC 151 accepted that proposition and I agree.

M submits that the Romaniancourt has acquiesced to A’s retention in England. I do not think that LB Haringey (supra) assists M. It was a 1996 Hague Convention case, it involved a Local Authority and MacDonald J concluded that he would not acquiesce to the removal of a child from this country to Poland. Importantly, in that case MacDonald J was sitting in a court in the outgoing country (England) and making a determination as to whether the English court should acquiesce. By contrast, in this case, I am sitting in the incoming country (England) and am being asked to conclude that the court of the outgoing country (Romania) has acquiesced.

The only case which counsel have been able to find which does not involve a Local Authority and in which the courts of England decided that an overseas court had acquiesced in the removal of a child to England is NM v SM (supra). That was on unusual facts. The applicant in that case (unlike the present one) had no rights of custody and accordingly the Irish courts, in which proceedings were taking place, had custody rights under Irish law but, by electing not to make orders retaining the child in Ireland had therefore, according to Holman J, acquiesced in the child’s retention in England.

In my judgment, it would be highly unusual for a court in England to determine that, if a child is allegedly abducted from this jurisdiction to a 1980 Hague Convention country, the court itself should consent to/acquiesce in the wrongful removal or retention. Such a proposition would be almost unheard of in cases between two parents, and I confess that I have not encountered it before. In most such cases, where a parent elects to institute 1980 Hague Convention proceedings to secure the return of a child from abroad, the English court will not permit an application under the inherent jurisdiction or the Children Act for a return order to be made, as the 1980 Hague Convention application is the preferred route to achieving the desired outcome; Re N (A child) [2020] EWFC 35 and Re S (Abduction: Hague Convention or BIIa) [2018] EWCA Civ 1226. That is not consent or acquiescence. It is allowing the Convention to fulfil its purpose.

By the same token, on the reverse facts where (as here) a child has been brought to this country and a return order is sought under the 1980 Hague Convention, it would be almost unheard of for the English court to conclude that an overseas court has acquiesced to the removal or retention. In this case, F was exercising his rights of custody. I cannot see how it can be said that the foreign court has acquiesced in removal if the parent has not. Further, in my judgment that should be for the foreign court to decide, rather than the English court. There is no suggestion that the Romanian court has been asked to determine that it has in some way acquiesced to the removal, or that it has in fact done so. It would be unprincipled for me to assume the role of the Romanian court and make decisions on their behalf. In any event, as it happens there is nothing from the court proceedings in Romania which, in my judgment, begins to justify the assertion that the courts there have formally acquiesced under Article 13.

I would discourage this argument from being advanced, save in the most exceptional cases.

The burden lies on the Mother to open the Article 13(b) gateway.

For a general distillation of the applicable principles, I have in mind the dicta of the Court of Appeal in Re IG [2021] EWCA Civ 1123:

“47.

The relevant principles are, in summary, as follows.

(1)

The terms of Article 13(b) are by their very nature restricted in their scope. The defence has a high threshold, demonstrated by the use of the words "grave" and "intolerable".

(2)

The focus is on the child. The issue is the risk to the child in the event of his or her return.

(3)

The separation of the child from the abducting parent can establish the required grave risk.

(4)

When the allegations on which the abducting parent relies to establish grave risk are disputed, the court should first establish whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then establish how the child can be protected from the risk.

(5)

In assessing these matters, the court must be mindful of the limitations involved in the summary nature of the Hague process. It will rarely be appropriate to hear oral evidence of the allegations made under Article 13(b) and so neither the allegations nor their rebuttal are usually tested in cross-examination.

(6)

That does not mean, however, that no evaluative assessment of the allegations should be undertaken by the court. The court must examine in concrete terms the situation in which the child would be on return. In analysing whether the allegations are of sufficient detail and substance to give rise to the grave risk, the judge will have to consider whether the evidence enables him or her confidently to discount the possibility that they do.

(7)

If the judge concludes that the allegations would potentially establish the existence of an Article 13(b) risk, he or she must then carefully consider whether and how the risk can be addressed or sufficiently ameliorated so that the child will not be exposed to the risk.

(8)

In many cases, sufficient protection will be afforded by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there.

(9)

In deciding what weight can be placed on undertakings, the court has to take into account the extent to which they are likely to be effective, both in terms of compliance and in terms of the consequences, including remedies for enforcement in the requesting State, in the absence of compliance.

(10)

As has been made clear by the Practice Guidance on "Case Management and Mediation of International Child Abduction Proceedings" issued by the President of the Family Division on 13 March 2018, the question of specific protective measures must be addressed at the earliest opportunity, including by obtaining information as to the protective measures that are available, or could be put in place, to meet the alleged identified risks."

To the above, I would add a particular aspect of Article 13(b) as expressed by Lord Wilson in Re S(A Child) (Abduction: Rights of Custody) [2012] UKSC 10at para 34:

“If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned”.

In Re C (Children) (Abduction: Article 13b) [2018] EWCA Civ 2834 Moylan LJ made clear that it is not the case that the court has to accept allegations made without conducting an assessment of the credibility or substance of the allegations:  

“[39] In my view, in adopting this proposed solution, it was not being suggested that no evaluative assessment of the allegations could or should be undertaken by the court. Of course a judge has to be careful when conducting a paper evaluation but this does not mean that there should be no assessment at all about the credibility or substance of the allegations…” 

In Re C (Article 13(b)) [2021] EWCA Civ 1354, Moylan LJ emphasised that the risk to the child must be a future risk (paras 49-50). He cited from the Good Practice Guide to emphasise that: 

“… forward-looking does not mean that past behaviours and incidents cannot be relevant to the assessment of a grave risk upon the return of the child to the State of habitual residence. For example, past incidents of domestic or family violence may, depending on the particular circumstances, be probative on the issue of whether such a grave risk exists. That said, past behaviours and incidents are not per se determinative of the fact that effective protective measures are not available to protect the child from the grave risk”.

An analysis of the approach to protective measures is set out by Cobb J in (Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415 where he considered (para 45) the following:

I bear in mind also what MacDonald J said in G v D [2020] EWHC 1476 (Fam) at para 39:

“Finally, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State (see for example Re H (Abduction: Grave Risk) [2003] EWCA Civ 355, [2003] 2 FLR 141, Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433). In this context I note that Lowe and others observe in International Movement of Children: Law, Practice and Procedure 2nd Edt. at paragraph 24.55 that: “Although, as has been said, it is generally assumed that the authorities of the requesting State can adequately protect the child, if it can be shown that they cannot, or are incapable of or, even unwilling to, offer that protection, then an Art 13(b) case may well succeed. It seems evident, however, that it is hard to establish a grave risk of harm based on speculation as opposed to proven inadequacies in the particular cases.”

When considering the domestic abuse allegations made by the Mother, I have taken into account the definition of domestic abuse at s1(3) of the Domestic Abuse Act 2021, PD12J and the jurisprudence as to the impact on child welfare of domestic abuse, including Re H-N [2021] EWCA Civ 448.

F offers a variety of protective measures which he says will sufficiently mitigate the concerns raised by M.