V v V (Abduction: No Consent)

Consent to a child’s removal under the Hague Convention must be clear and unequivocal. It is assessed from the parents’ words and conduct in the realities of family life, rather than by contractual principles. The burden lies on the parent asserting consent. The inquiry is fact-specific and requires consideration of the whole narrative, including the significance of particular acts in the family’s circumstances.

Acquiescence is a subjective state of mind inferred from conduct. It cannot arise from an alleged agreement that was never made. A move need not be permanent to alter habitual residence, but the court must assess whether the child has become integrated into the new environment.

The mother applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the summary return of three children to Australia. The children had travelled with her to England in July 2015. The father contended that the move was a permanent relocation agreed between the parents. The mother said that England was intended to provide a period of recuperation and stabilisation, after which the children would return to Australia unless the family later agreed otherwise.

The father relied principally on consent and alternatively on acquiescence. He also raised an Article 13(b) defence, but withdrew it. The central issues were the children’s habitual residence when proceedings began, whether the mother had consented to a permanent relocation, and whether she had subsequently acquiesced in the children remaining in England.

1. Habitual residence. The children had remained habitually resident in Australia. They had grown up there and it remained their home. Their arrangements in England, although carefully organised, had a provisional quality and had not integrated them into life in England sufficiently to change their habitual residence.
2. Consent. Applying the principles in Re P-J [2009] 2 FLR 1051, consent had to be clear and unequivocal. The burden rested on the father. The court assessed the parents’ words and deeds realistically, in the context of the family’s circumstances, and considered the overall narrative rather than isolated communications.
3. The evidence did not establish an agreement to relocate permanently. The mother’s communications in June and July 2015 showed a consistent intention that the stay should be temporary. The father’s later reactions, including his agreement in December 2015 and his evasive responses in February 2016, were inconsistent with his having believed that a permanent agreement already existed.
4. Acquiescence. The principles in Re H [1997] 1 FLR 872 applied. Acquiescence required proof of the mother’s subjective state of mind, and the burden rested on the father. Since the mother had not consented to permanent relocation in 2015, her conduct in 2016 could not amount to acquiescence in that arrangement.
5. The court noted, consistently with Re H-K (Habitual Residence) [2012] 1 FLR 436, that a move need not be permanent to change habitual residence. On the facts, however, the children’s presence in England remained provisional.
6. The Article 13(b) defence was withdrawn and the evidence did not approach the threshold for an intolerable situation. The children’s future should be determined by the Australian courts. Their summary return to Australia was directed, with arrangements for timing and implementation to be addressed after the parties had considered the judgment.

Not stated in the judgment. This was a first-instance application in the High Court, Family Division.