D (Children : Abduction)

Under the Hague Convention, a parent relying on consent to a child’s removal or retention must establish clear and unequivocal consent. The court assesses the communication in the context of family life, rather than by applying contractual principles. Consent may be withdrawn before removal or retention. Where consent is not proved and proceedings begin within one year of the wrongful removal or retention, the court must order prompt return, subject to the Convention’s exceptions. Welfare arguments about where the children should live are ordinarily for the courts of their habitual residence.

The mother applied under the Hague Convention and Council Regulation 2201/2003 for the summary return to France of her three children. The children had been habitually resident in France and were brought to England by their father for an agreed holiday. The father retained them after the agreed return date, relying on emails in which the mother had said, during an argument, that he could take custody.

The mother denied giving unequivocal consent and alternatively said that any consent had been withdrawn before the retention. The central issue was whether the father had established consent under Article 13(a) of the Hague Convention.

1. Consent. The father bore the burden of proving the defence under Article 13(a). Applying the principles in Re P-J (Children) (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588, consent must be clear and unequivocal. The enquiry is fact-specific and must take account of the realities of family life and its disintegration, rather than contractual concepts.
2. The mother’s emails did not amount to clear and unequivocal consent. They were sent during a heated exchange about contact dates, maintenance and the children’s arrangements. Her reference to abduction shortly afterwards further undermined the father’s interpretation.
3. In any event, even if consent had been given, it was withdrawn before the children were retained. The principles concerning removal in Re P-J applied by analogy to retention.
4. Return. The children had been habitually resident in France. The application was brought within one year, so Article 12 required their summary return, and no sufficient Article 13(a) defence was established. The purpose of the Convention, identified in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, supported leaving disputes about the children’s future residence and welfare to the courts of their home country.
5. The court ordered the children’s return to France at 10 a.m. the following morning. Their immediate return that evening was declined because of their young age and the time of day.