P (A Child), Re

Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, prior consent to a child’s removal is an Article 13 exception. It does not prevent an otherwise prima facie breach of custody rights from being wrongful under Article 3.

The court must first identify the rights held under the law of the child’s habitual residence. It must then determine autonomously, and purposively, whether they are Convention rights of custody. A parent’s right to withhold consent to a child’s removal from the country is capable of being a right to determine the child’s place of residence and therefore a right of custody.

The father appealed against Johnson J’s dismissal of his applications for the return of his ten-year-old daughter from England to New York. The applications were made under the 1980 Hague Convention on the Civil Aspects of International Child Abduction and under the inherent jurisdiction.

The mother alleged that the father had consented to the child accompanying her to England. The judge accepted that account on contested handwriting-expert evidence. He also concluded that the father had no rights of custody under New York law, notwithstanding an order preventing either parent from removing the child from New York without consent or a court order.

The appeal concerned consent, its proper place under Articles 3 and 13, and whether the father’s rights amounted to Convention rights of custody.

1. Appeal allowed. The court held that the mother had not established that the father consented to the removal. In Hague Convention proceedings, disputed affidavit evidence may be rejected only where compelling independent evidence supports the opposing case, or the evidence is inherently improbable. The conflicting handwriting reports and written accounts provided no compelling basis to prefer the mother’s account.

2. The judge’s unexplained preference for one handwriting expert over the other was inadequate. The court applied English v Emery Reinbold & Strick Ltd [2002] EWCA Civ. 605: a judgment must explain the resolution of issues vital to its conclusion. Hague proceedings require summary determination and oral evidence should be permitted sparingly. If expert evidence is needed, a court-appointed expert is generally preferable to competing experts.

3. Consent to removal falls to be considered under Article 13, not Article 3. Article 3 governs whether there has been a prima facie breach of rights of custody. The person resisting return then bears the burden of establishing consent under Article 13. This construction gives effect to Article 13 as an exception to the Convention’s general return obligation and leaves the court with its Article 13 discretion where consent is proved.

4. The expression rights of custody has an autonomous Convention meaning. The court must identify the parent’s rights under the law of habitual residence, but domestic characterisation does not determine whether those rights are Convention rights of custody. The father’s enforceable right to withhold consent to removal from New York gave him a right to determine whether the child could reside abroad. It was therefore a right of custody within Articles 3 and 5, irrespective of New York or federal United States law.

5. The removal was consequently wrongful, and no Article 13 consent defence had been made out. Under Article 12, the child’s immediate return to New York had to be ordered. The court directed further written submissions only if the parties could not agree the form of the return order.

• Court of Appeal (Civil Division): Allowed the father’s appeal in [2004] EWCA Civ 971 and ordered the child’s immediate return to New York under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
• Family Division, Principal Registry: On 11 March 2004, Johnson J dismissed the father’s Convention return application and his alternative inherent-jurisdiction application.