IB v MM

In a Hague Convention child-abduction application, consent to holiday travel or general approval of relocation does not amount to clear and unequivocal consent to permanent removal. Consent must relate to the specific proposed removal and remain operative when it occurs.

Under Article 13(b), the court must assess the situation this particular child would face on return, including the effect of a primary carer’s genuine anxieties, the emotional consequences of separating closely connected siblings, and the absence of effective protective measures. A grave risk may arise from an intolerable situation even where the direct physical threat is limited.

A child’s objections may be taken into account where the child has attained sufficient age and maturity. The court retains a discretion to refuse summary return where an Article 13 defence is established.

The applicant father sought the summary return of his nine-year-old daughter to Germany under the Hague Convention on the Civil Aspects of Child Abduction 1980. The child had travelled to England with her mother and half-brother in July 2014 and remained there.

The parents had joint custody under an agreement made in Germany. The mother relied on consent, acquiescence, grave risk of physical or psychological harm or an intolerable situation, and the child’s objections. She also relied on the close relationship between the child and her half-brother, whose past experiences in Germany were said to make return particularly harmful.

The central issues were whether the father had consented to relocation, whether he had subsequently acquiesced, whether return would expose the child to a grave risk or intolerable situation, and whether proper weight should be given to her objections.

1. The application was dismissed. The father had not established that the mother’s retention was supported by clear and unequivocal consent to permanent relocation.
2. Applying Re P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588, consent had to be assessed in the factual context. The father had agreed, at most, to holidays and had discussed in general terms the possible benefits of England. He had not been given meaningful details of a permanent move, including the mother’s marriage and the arrangements for continuing contact. General approval or knowledge of a possible move was insufficient.
3. The defence of acquiescence was not established. The father believed the trip was an extended holiday, sought information from the German youth authorities, consulted lawyers, and repeatedly sought clarification. His conduct was inconsistent with acceptance of permanent retention.
4. There was a grave risk that return would place the child in an intolerable situation within Article 13(b). The court considered the mother’s continuing trauma, the likelihood that her anxieties would affect the child, the half-brother’s genuine fears concerning Germany, and the unusually close sibling relationship. Separating the children, or returning them in circumstances likely to compound their shared trauma, created a serious risk of psychological harm.
5. The child clearly objected to return. She was sufficiently mature for her views to be taken into account. Her objections went beyond a preference for remaining in England and were connected with separation from her half-brother, her fears concerning Germany, and the emotional security she had achieved there.
6. No concrete protective measures were available to address the central family dynamic and shared trauma. The court therefore exercised its discretion to refuse summary return. The judgment concerned summary return only and did not determine the long-term welfare arrangements or prevent future contact in Germany.