F (Abduction: Consent), Re

Consent to a child’s removal under the Hague child abduction convention must be clear and unequivocal. Assistance with travel, financial support or an intention to maintain contact does not necessarily amount to consent or acquiescence. Acquiescence requires conduct showing that the non-consenting parent has accepted the child’s retention, assessed in its factual context. Under Art. 13(b), the court must consider whether return would expose the child to grave harm or place the child in an intolerable situation. Disruption to the child’s current arrangements is not enough where protective undertakings are available and enforceable in the state of habitual residence. The child’s welfare is considered within the Convention framework, including the benefits of renewed contact with the left-behind parent and determination of the child’s long-term future in the proper jurisdiction.

The applicant father sought the summary return to Denmark of his six-year-old son, whom the respondent mother had taken from Denmark to Slovakia, the Czech Republic and then England. The parents had joint custody and parental responsibility. The mother argued that the father had consented to the move, or had subsequently acquiesced in the child’s retention. She also relied on Art. 13(b), alleging the father’s abusive behaviour, criminality, and the difficulties that return would create for her and the child. The central issues were whether consent or acquiescence had been established and whether return would create a grave risk of harm or an intolerable situation.

1. Consent. The mother had not established that the father consented to the child’s removal to England. Consent must be clear and unequivocal. The father’s assistance in taking the mother and child to a bus station, the absence of a fixed return date, and his financial support did not establish consent. The evidence showed that he had agreed only to a temporary visit to Slovakia.
2. Acquiescence. The defence of acquiescence was not made out. The father’s conduct had to be assessed in the light of his limited ability to travel and his wish to preserve contact with the child. Financial payments and plans to visit could denote acquiescence in another case, but did not do so here. The commencement of proceedings and the surrounding evidence were inconsistent with a change of mind about the child’s retention. The court applied the guidance in Re H (Abduction: Acquiescence) [1997] 1FLR 872.
3. Art. 13(b). The court applied the question whether return would be likely to expose the child to grave harm or place him in a situation that he should not be expected to tolerate. The allegations were taken at face value, but the risk was not established. The assessment included the pre-removal circumstances, the mother’s resilience and wider family support, and the enforceability in Denmark of the father’s undertakings.
4. The disruption caused by return was significant, but did not engage Art. 13(b). It had to be weighed against the advantages of renewed contact with the father and the determination of the child’s long-term future in the jurisdiction of habitual residence. The mother’s defences were dismissed and a return order was to be made.

First-instance decision. No earlier decision or appeal is stated in the judgment.