FD24P00616 - [2025] EWHC 985 (Fam)

The foundation of the Hague Convention is to provide a framework for the courts to decide which court should make welfare decisions about children who had been abducted from one jurisdiction to another in breach of the parental rights of the left behind parent in the state in which the children were habitually resident. In this case, despite the fact the parents never married, it is common ground that both the Father and the Mother had parental rights in relation to these children in Spain. Accordingly, if the Mother had removed the children from Spain without the Father’s consent, it is agreed that that would be a breach of the Father’s parental rights and thus engage the Convention. Conversely, it is common ground that, if the Mother and the Father had orally agreed a plan whereby the Mother was to move to live in England with the children, the Mother would not have acted in breach of the Father’s parental rights in carrying out the plan. It might have been different if the law of the state from which the children were removed required formalities before a parent’s consent could be legally effective, such as being set out in a written agreement signed by both parents. There is no suggestion that there is any such requirement in Spanish law and thus I am invited to assume that oral consent by one parent is sufficient under Spanish law. Thus, if the Mother and Father had agreed this plan, the Father accepts that the Mother’s removal of the children from Spain was not “wrongful” for the purposes of Article 3 of the Convention.

However, even if the Father had originally agreed to a removal plan, it is agreed that the Father is entitled later to change his mind and then assert that he was withdrawing his consent to the children living in England and wanted them to return to Spain, as Wilson J (as he then was) explained in In reD (Abduction: Discretionary Return) [2000] 1 FLR 24 ) at page 36.

It appears to me that the Father is entitled to take this position because, in the early days after a consensual removal, the children will remain habitually resident in Spain. Habitual residence is a matter of fact and, in very broad summary, a new habitual residence is only acquired after the child has become sufficiently integrated into their new environment: see re B (A Child) (Custody Rights: Habitual Residence) [2016] 4 WLR 156as clarified in In re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] 4 WLR 137. Thus, it seems to me that the law is that a left-behind parent who has consented to the removal of a child with a travelling parent is nonetheless entitled to change his or her mind and to assert that the continuing retention of the child in the new state is wrongful up to the point when the child acquires a new habitual residence in the new state. It follows that, even if the Mother proves that her removal of these two children to England was not wrongful (in the sense that she did so with consent), the Father is nonetheless entitled to assert that retaining the children in England is wrongful and thus rely on the terms of the Convention to seek a return order. It is common ground that I am not obliged to make a Return Order in such a case, but have a discretion whether to make a return order or not.

The law on the evidence needed prove consent was not in dispute between the parties. It was accepted that the leading cases are Re P-J (children) [2009] EWCA 588 and Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139. In the latter case Peter Jackson LJ said:

“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.

When making submissions, Ms Georges for the Father initially submitted that there was “zero evidence” to support the mother’s case on consent and that it was not open to me on the evidence in this case to decide that there had been consent. That was an ambitious submission which appeared to be based on the proposition that the need for “clear and unequivocal” evidence meant that it would be wrong in principle for the court to make a decision on the Mother’s evidence alone without any supporting or corroborating evidence. I do not accept that submission. It seems to me that the Mother is perfectly entitled to give evidence of conversations to which she says she was a party and to invite the Court to accept that evidence. She is entitled to do that even if the other party to the conversation disagrees about what was said.

In this case I have heard evidence from both sides as to whether there was a meeting between the Mother and the Father on about 4 August and, if there was a meeting, what was said at that meeting. When pressed, Ms Georges reluctantly accepted that, if I were accept the Mother’s account of what was said at the meeting, her account of events constituted evidence and, if I accept that evidence, the Father’s consent to the removal on 14 August would be proven. However, she urged me not to accept that evidence because (a) she submitted I should prefer the Father’s evidence over the Mother’s evidence on those events and (b) I should not accept it due to the absence of any corroborating evidence. Her main case was that it was inherently unlikely that the Father would have agreed for the Mother to relocate to England with his children because he is devoted to his children and it is unlikely that he would not have agreed to something that would prevent him seeing his children on a weekly basis.

I have had the benefit of hearing both the Mother and the Father give evidence on the issue of consent. The Mother was a nervous witness who gave her evidence well and, so it seemed to me, was generally trying to be honest with the court. She was prepared to accept criticism of her where her behaviour was less than perfect, such as working “cash in hand” for jobs in Spain. I was also satisfied that she was telling the truth when she explained that she was having serious problems in her relationship with the Father but nonetheless that, despite the problems between them, she sought to ensure the children could maintain a relationship with both parents, and so co-operated with the children spending time with the Father despite all the difficulties with his behaviour. In contrast, even taking full account of the difficulties of giving evidence through a translator, the Father’s evidence was far less impressive. He was an evasive witness who gave long, rambling answers which, on occasion, did not address the questions that he had been asked. The Father appeared to me to have little if any insight into the extent to which his messages indicated an attitude to the children which, in my judgment, even assuming the children had said things he believed to be untrue, was wholly unjustified. He also did not have any real explanation as to why the Mother had sent despairing messages to her mother over an extended period about his behaviour, including his cocaine use, when he suggested that he had never done anything to justify her concerns and never took cocaine. However I am mindful that the fact that the Father may not have been truthful about one or more aspects of his evidence should not lead me to conclude that he is not telling the truth about other aspects of his case.

I have carefully considered the factors urged on me by Ms Georges for the Father (as summarised at paragraph 19 of her helpful Skeleton Argument) to support her case that the Father never gave consent. In any complex factual situation where emotions are high and the issue is what has been agreed orally between two people, there will always be factors that can be relied upon to support one case or another. However, if I were to accept that the Father blew hot and cold about accepting the responsibilities of being a parent, it seems to me that none of the factors relied upon by Ms Georges point strongly in the direction of the Father not having agreed to the relocation.

I consider that the Mother’s evidence as to what happened on 4 August when she says the Mother and the Father discussed her moving to England with the children is more likely to be correct for the following reasons:

I thus accept that the Mother’s evidence establishes that it is more likely than not that the Mother and the Father met on about 4 August and discussed a plan under which the Mother would take the children to live with her in England, and that she would ensure that the children visited Spain regularly so as to maintain contact with the Father. I also accept that, notwithstanding the Father’s emotional state at that informal meeting, any decision reached at that meeting was “clear and unequivocal”. It appears clear that the Father’s mood improved in the 10 days between that meeting and the date of departure and that the party for GH on 12 August went ahead without any problems. Given that, as I have found, the Father knew that the plan was for the children to go to live with the Mother in England from 14 August, he must have reflected on that decision in the period between 4 August and 14 August. There is no suggestion from either the Father or the Mother that, as his mood stabilised and he came to terms with what was going to happen, he changed his mind and said to the Mother that he did not want her to move on a long term basis to England with the children. He had, in effect, a 10 day “cooling off” period when he must have known that the Mother was pressing ahead with her plans for this permanent move and the evidence suggests that he did not change his mind about the agreed relocation or withdraw his consent. That evidence, taken as a whole, leads me to the conclusion that his decision to give consent was clear and unequivocal.

I thus conclude that the removal of the children from Spain to England was not wrongful within the terms of the Convention. In those circumstances I do not need to deal with the Mother’s alternative case based on acquiescence. Notwithstanding my conclusion on the consent issue, I accept that by 28 August 2024 the Father had learned of the allegations that the children were making against him and members of his family and that he withdrew the consent that he had given for the children to remain in England. At that point it seems to me that the children had not yet become habitually resident in England and thus they continued to be habitually resident in Spain. There does not appear to be any concept of estoppel in family law and thus there was nothing to prevent the Father from changing his mind and withdrawing his consent to the children changing their place of habitual residence.

The approach the court should take where a parent initially gives consent to a removal and later changes their mind and demands return was examined by Peter Jackson LJ in his judgment in In re G (Children) [2021] Fam 239. The Juge noted that in C v H [2020] 1 FLR 225 Munby J had said at para 46 “I am inclined to think that it will be an unusual case in which consent having been established, it is nonetheless appropriate to order a return”. Having examined the cases, the Peter Jackson LJ said at para 42:

“In a consent case, the better view is that the weight to be given to the policy considerations of counteracting wrongful removal and deterring abduction may be relatively slight, while the weight to be attached to home-based decision-making and comity will depend critically on the facts of the case and the view that the court takes of the effect of a summary return on the child's welfare”

However, in order to undertake that exercise, it is necessary to consider further the facts of this case which can helpfully considered around the child objections and article 13(b) intolerability defences.