CM v FC (Abduction: Consent)

Consent under Art. 13(a) of the Hague Convention must be clear and unequivocal. The court adopts a practical, family-focused assessment of the evidence, with the burden on the person asserting consent. Consent to a holiday does not amount to consent to an indefinite change of residence. Contemporaneous communications and conduct may be more reliable than later oral evidence inconsistent with the documentary record.

The Art. 13(b) defence requires a stringent showing of grave risk of harm or an intolerable situation. Issues concerning welfare and protection should ordinarily be determined by the courts of the child’s habitual residence where suitable protective measures are available.

The mother applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the return of her four-year-old daughter to Romania. The child had travelled to England with her father in December 2016 and remained there.

The parents had joint custody under a Romanian order, with the child residing with the mother. The father contended that the mother had consented to the child living indefinitely in England, engaging Art. 13(a). He also relied on alleged welfare concerns under Art. 13(b).

The central issues were whether the mother had consented to the child’s removal and retention, whether grave risk or intolerability was established, and how any return should be arranged.

1. Consent. The application was granted and the child’s immediate return to Romania was ordered. Under Art. 13(a) of the Hague Convention on the Civil Aspects of International Child Abduction 1980, the father bore the burden of establishing consent. Applying Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051, the court took a practical, family-focused approach and required consent to be clear and unequivocal [11]-[12].
2. The notarial documents did not establish consent to an indefinite move. The first concerned travel as a tourist for holidays. The passport document was neutral. The contemporaneous emails showed that the mother expected a short visit and repeatedly sought the child’s return. They were inconsistent with the father’s later case. In summary proceedings, oral evidence should not be admitted to support an account that cannot stand alongside the accepted contemporaneous record [13]-[28]. The mother had consented only to a short holiday. The retention was therefore wrongful.
3. Grave risk. The alleged sexualised behaviour and other welfare concerns were taken at their highest but did not approach the stringent threshold under Art. 13(b). They were matters for the Romanian court. The court was not entitled to refuse return where protective measures were available in Romania, the child’s habitual residence [29]-[31].
4. Return arrangements. Under s. 5 of the Child Abduction and Custody Act 1985 and Art. 11 of the Hague Convention 1996, the court could regulate the child’s departure and arrival until an effective hearing in Romania. Because the mother had care under Romanian law and the father was responsible for the wrongful removal, the child was to return with the mother as soon as travel documents permitted [32]-[34].

Not stated in the judgment.