E v Q (Abduction: Defences)

In a summary application for return under the Hague Convention, consent to relocation must be clear and unequivocal. General remarks such as permission to do what one likes do not amount to consent where the surrounding circumstances show that the proposed relocation was not disclosed.

A child’s preference for remaining in one country is not necessarily an objection to return. The court must apply a straightforward assessment of whether the child objects and, if so, may exercise its discretion to order return.

The Article 13(b) threshold concerns grave risk of physical or psychological harm, or an intolerable situation, to the child. Inconvenience, disruption and anxiety inherent in return are insufficient. The power to postpone or suspend a return order exists but is exceptional and ordinarily cannot be used to await indefinitely the outcome of foreign proceedings.

The father sought the summary return of two children to Poland after the mother brought them to England in August 2018. The mother resisted return on the grounds of consent under Article 13(a), grave risk under Article 13(b), and the older child’s objection.

The parties disputed whether the father had consented to the move, whether the older child’s expressed wish to remain in England amounted to an objection, and whether the mother’s circumstances, including alleged domestic violence, pregnancy, family disruption and the father’s residence outside Poland, established a grave risk or justified postponement of return.

The court also considered whether return should be delayed pending proceedings in Poland concerning relocation.

1. Consent. The mother bore the burden of proving consent on the balance of probabilities. The evidence showed that she had kept her plans secret, failed to disclose the travel arrangements, restricted contact after relocation and had not given the father a concrete opportunity to agree to the move. Any remarks such as do what you like were made in the context of the adult relationship and did not constitute consent to relocation. In any event, they did not satisfy the requirement of clear and unequivocal consent. The Article 13(a) defence therefore failed.
2. Child’s objection. A preference for life in England did not amount to an objection to return to Poland. The older child expressed positive views about Poland, wished to maintain contact and did not demonstrate the necessary objection. Even if the gateway requirements had been met, the court’s discretion to order return was at large and would have been exercised in favour of return.
3. Grave risk. Article 13(b) required a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation. The assessment concerned the children, although the mother’s circumstances could be relevant where the positions overlapped. The difficulties relied on, including pregnancy, disruption to family life and schooling, alleged violence, financial concerns and the father’s location outside Poland, fell far short of the required threshold. Protective measures were broadly agreed.
4. Postponement. The court had jurisdiction to stay or suspend implementation of a return order, but that power was exceptional and had to be exercised consistently with the Convention’s policy of prompt return. A short, purposeful delay to settle affairs or attend an imminent foreign hearing could be justified. An arbitrary or indefinite postponement pending the outcome of Polish proceedings would negate the court’s findings and was unjustified here. The father’s residence in a neighbouring country did not materially alter the position.
5. The father’s application for summary return was granted. Return was to take place within approximately four weeks, subject to practical arrangements and agreed protective measures. The judgment was not intended to influence the Polish court’s welfare determination.