F v F

Consent to a child’s removal under Article 13(a) of the Hague Convention must be clear and unequivocal. The court assesses consent in the realities of family breakdown, not by contractual principles. Advanced preparations for relocation do not establish consent where the evidence shows that relocation formed part of an unresolved overall agreement. Consent may be withdrawn before removal, but the issue here was absence of consent rather than withdrawal.

Habitual residence is child-centred. A child does not necessarily lose habitual residence merely because parents have made extensive preparations for relocation. Article 20 is reserved for substantially more extreme circumstances involving fundamental public-policy or human-rights concerns.

The father applied under the 1980 Hague Convention for the summary return to Hungary of three children who had been taken from Budapest to England by their mother. The parents had made extensive preparations for a possible move, including arranging English schools and identifying a London home. The mother maintained that the father had consented to permanent relocation. The father said that any move was conditional upon agreement of a comprehensive separation package.

The central issues were whether the father had consented to, or subsequently acquiesced in, the children’s removal or retention; whether the children remained habitually resident in Hungary; and whether return would be contrary to Article 20.

1. Consent. The application was determined by asking whether the father had clearly and unequivocally consented to permanent removal, taking account of the realities of family life and family breakdown. The question was not whether his refusal was reasonable or whether he ought to have consented. The parties’ arrangements remained proposals forming part of an overall separation agreement. By 7 July, and in any event before removal, the father had made clear that he did not consent to permanent relocation without agreement of that package. The preparations in England therefore did not establish consent.
2. The father’s position was one of non-consent, rather than a withdrawal of consent. Alternatively, any possible ambiguity had been removed before the children left Hungary. The children’s young ages and the father’s references to a London home did not alter that conclusion.
3. Acquiescence. The father objected immediately and continuously. Completing the purchase of the London property did not amount to acquiescence, particularly as the children’s occupation of it was connected with the proceedings and was without prejudice to the issue.
4. Habitual residence. Habitual residence was assessed from the children’s perspective. The children had not de-integrated from Hungary, where they had lived for two years. The proposed arrangements had not been finally settled, so they had not lost their Hungarian habitual residence on departure and had not acquired a different habitual residence in England and Wales.
5. Article 20. The provision applied to a substantially more extreme case involving an offence to public policy or the conscience of the court. This case did not meet that threshold. The children had a home, schooling, grandparents and a familiar environment in Hungary. The father’s application was granted. Return was directed approximately one month later, during the school break, giving a broad practical interpretation to the requirement of return forthwith.