M v JM

Consent to a child’s removal under Article 13 of the Hague Convention need not be written, but it must be clear and unequivocal. The court must determine whether the consent was real and free from a material misunderstanding or non-disclosure. Where consent is proved, the court retains a discretion whether to order return. That discretion should be exercised having regard to the wording and purpose of the Convention. A consenting parent should not ordinarily be allowed to withdraw consent after the other parent has acted in reliance on it, although exceptional circumstances may exist.

The father applied under the Hague Convention for the summary return of his two children to Greece. The children had been habitually resident in Greece, and the father had rights of custody. It was accepted that he consented to their removal to England, but the parties disputed the extent of that consent.

The father said that he intended to join the mother and children later. The mother said that he had agreed to a divorce and to her remaining in England with the children. The father alternatively argued that any consent had later been rescinded.

1. The application was dismissed. The mother proved that the father consented to her bringing the children to England and remaining there with them without him.
2. Consent under Article 13 of the Hague Convention need not be in writing. It must be clear and unequivocal. The court must consider whether the consent was genuine and whether any misunderstanding or non-disclosure materially affected the consenting parent’s decision. The approach stated by Charles J in Re T (Abduction: Consent) (1999) 2 FLR was adopted and applied.
3. The evidence, including the father’s knowledge of the proposed schooling, his discussions of business ventures in Greece, the mother’s prompt divorce instructions and the Greek lawyer’s letter, established that the father had agreed to the mother’s return alone. The contrary evidence did not persuade the court.
4. Article 13 provides a discretionary release from the otherwise applicable obligation to return a wrongfully removed child. The discretion must be exercised in accordance with both the wording and spirit of the Convention. The court relied on the description of Article 13 in Re G (A Minor) (1989) 2 FLR.
5. It would generally be inappropriate to permit a consenting parent to change their mind after the other parent had acted in reliance on the consent. The father’s later attempt to secure the children’s return, prompted by the financial consequences of an English divorce, did not rescind the original consent. Post-separation discussions directed towards reconciliation should not ordinarily be treated as undermining established rights.