FJN v EGLF

For the purposes of an application under the Hague Convention, an agreed permanent move of children from one country to another is not converted into wrongful retention merely because one parent later changes their mind. Clear and unequivocal consent may be established by the parties’ agreement and contemporaneous documentary evidence. Where consent to permanent residence has been given, the consenting parent cannot subsequently withdraw it so as to found a claim for summary return. The court may also consider the children’s welfare and the practical consequences of a further move. The children’s stability, integration, settled circumstances and need for continuing contact with the left-behind parent are relevant considerations.

The mother applied under the Hague Convention for the summary return to France of her five-year-old twins, who had travelled to England with the father in May 2013. The parents agreed that the children could come to England, but disputed whether the arrangement was permanent or temporary while the mother received medical treatment. The mother relied on alleged wrongful retention in July or September 2013. The father relied on unequivocal consent to the children living permanently with him. By the hearing, the children were settled in England, attending school and receiving care and support. The central issue was whether the father’s retention was wrongful.

1. Application dismissed. The mother had consented to the children coming to England to live with their father on a permanent basis. There was therefore no wrongful retention within the Hague Convention.
2. The court preferred the father’s evidence. The mother’s handwritten letter, written shortly after the children left France, stated that they should live with their father. That evidence was consistent with the parties’ agreement and with information later given by the mother to English social services. Although she subsequently changed her mind, she could not withdraw the clear and unequivocal consent that she had given.
3. The court accepted that the mother’s serious illnesses explained why she might initially have agreed to the arrangement and later wished to recover the children. That did not alter the legal effect of her consent. The children’s circumstances were also relevant: by the end of November they were happy and settled, had stable childcare arrangements, were attending school and had developed a relationship with their father.
4. Even if there had been wrongful retention, the court was satisfied that returning the children to France would be detrimental to their welfare after the traumatic move to England and their subsequent integration there. The children should remain in England, while maintaining meaningful contact with their mother, who remained an important part of their identity and family background.
5. The court made a residence order in favour of the father and ordered reasonable contact between the mother and the children, to be agreed between the parents. The mother remained at liberty to issue proceedings under the Children Act.