FD24P00857 - [2025] EWHC 835 (Fam)

Fecha: 08-Abr-2025

Consent

Consent

50.

Article 13 of the Hague Convention states inter alia:

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 …

51.

Hershman and McFarlane: Children Law and Practice by McFarlane, Reardon and Laing, published by Bloomsbury provides a useful summary of the principles at paragraph 166AB. Consent must be proven on the balance of probabilities by the party alleging consent was obtained. Consent is an exception to the principle of return. Consent refers to consent given before the act of removal or retention. Consent need not be proved by evidence in writing or other documentary material as parents may not have reduced their agreed position in respect of their children to a written document. It is appropriate to consider the parents' conduct in the context of all the evidence before the court. Consent is not however a purely private 'state of mind' which need not be communicated. Consent must be seen in the context of family life, not the rules of contract law. Consent can be withdrawn at any time before the actual removal. Consent must be real. The task of the court is to find as a fact whether the parent subjectively intended to and did give unconditional consent to the removal. Had the parent clearly and unequivocally consented to the removal?

52.

Peter Jackson LJ summarises the principles of consent in in G (Abduction: Consent/Discretion) [2021] EWCA Civ 139 at paragraph 25 to 26 as follows (emphasis added):

'…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.