B v P

In an application for summary return under the Hague Convention, consent to removal must be clear and unequivocal. Advance consent may be conditional, but the condition must be objectively ascertainable and the consent must remain operative when removal occurs. The burden lies on the person asserting consent.

Under Article 13B, the ordinary balance of probabilities applies and the opposing parent must substantiate the alleged grave risk or intolerable situation. The assessment must address the seriousness of the risk and the protective measures available on return. Undertakings offered in good faith may form a crucial part of those protective measures.

The father sought the summary return of his seven-year-old daughter, J, from England to Texas. The mother accepted that the removal was unlawful and abandoned reliance on acquiescence and the child’s objections. The remaining issues were whether the father had consented to the removal under Article 13A and whether return would expose J to grave psychological or physical harm or an intolerable situation under Article 13B.

The evidence concerned communications between the parents, J’s vulnerabilities, the mother’s circumstances on return, the possible separation of J from her older sibling, and protective undertakings offered by the father.

1. Consent. The court applied the principles in Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051. Consent must be clear and unequivocal. It may relate to a future time or event, but any condition must be objectively verifiable, and consent must remain operative at the date of removal. The enquiry is fact-specific, and the burden lies on the person asserting consent.
2. The father’s communications showed, at most, a conditional willingness to consider relocation. His conditions concerning J’s travel, financial arrangements and temporary care in Texas were not accepted. There was no concluded agreement, and the father was unaware of the removal until it had occurred. Article 13A was therefore not established.
3. Grave risk and intolerability. The court treated In Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 as central. The ordinary balance of probabilities applied. The risk had to be sufficiently serious to be grave, and the situation on return had to be assessed in light of protective measures available there.
4. The court applied the approach to intolerability stated in Re D (Abduction: Rights of Custody) [2007] 1 FLR 961. J would return with her mother, whose presence would provide security. The father’s undertakings concerning accommodation, financial support, medical insurance, travel costs, enforcement and conduct constituted significant protective measures. The evidence did not establish a grave risk of harm or an intolerable situation.
5. The possibility that J might return without her older sibling did not alter the conclusion. That possibility resulted from the mother’s own choice, and the evidence did not show that return in those circumstances would create the required risk.
6. The exceptions were not made out. A mandatory summary return order was therefore made. The judge added that, even if an exception had been established, she would almost certainly have exercised her discretion in favour of return.