D v E

Under the 1980 Hague Convention, consent to a child’s temporary travel does not establish consent to permanent relocation. Consent must be clear and unequivocal, and the burden lies on the parent asserting it. Acquiescence depends on the left-behind parent’s actual state of mind.

The child-objections exception has a low gateway threshold. Once it is satisfied, the court retains an unfettered discretion. The child’s views must be considered, but are not determinative. Under Article 13(b), the court assesses grave risk and intolerability in the circumstances of an immediate return, including available protective measures. The children were ordered returned to Australia together.

The father applied under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for the summary return of his three children to Australia. The mother had brought them to England in January 2020, asserting that the father had consented to a permanent relocation. The father maintained that he had agreed only to a holiday.

The mother relied on consent, acquiescence, Article 13(b) grave risk and intolerability, and the objections of the two older children. The central issues were whether the retention was wrongful, whether any Article 13 exception was established, and how the court should exercise its discretion if the children’s objections gateway was met.

1. Consent and acquiescence. The father had rights of custody and was exercising them. Applying Re PJ (Children) (Abduction: Consent) [2009] EWCA Civ 588, consent had to be clear and unequivocal, remained capable of withdrawal before removal, and had to be proved by the parent asserting it. The evidence established consent to a short holiday only, not permanent relocation. The mother therefore wrongfully retained the children and failed under Article 13(a).
2. Acquiescence required proof of the father’s actual state of mind. His prompt steps towards proceedings and continued friendly telephone contact were not inconsistent with an intention to seek summary return. The defence therefore failed under Re H (Abduction: Acquiescence) [1998] AC 72.
3. Child objections. Following Re M (Children) (Abduction: Child’s Objections) [2016] Fam 1, the court applied a two-stage process. Both older children genuinely objected to return and had sufficient age and maturity for their views to be taken into account. The gateway was deliberately low and did not require a wholesale rejection of the country of habitual residence.
4. Article 13(b). Applying Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, the court considered whether return would create a grave risk of physical or psychological harm or an intolerable situation. The assessment concerned the future circumstances of return and included available protective measures. The evidence did not establish grave risk. Appropriate professional support would be available in Australia, and return as a sibling group would avoid the particular risk of sibling separation.
5. The court rejected the argument that quarantine, the children’s residence with their father, or the mother’s likely refusal to return made the situation intolerable. The source of a risk was not determinative; the question was whether the grave risk actually existed.
6. Discretion. The discretion arising from the child-objections exception was at large. The court considered the children’s objections, their authenticity, the influence of the mother, their welfare, and the Convention’s objectives. The objections were sincerely held but significantly coloured by the mother’s views and the children’s rejection of their father. They therefore carried less weight than the Convention policy, Australia’s connection with the children, and the suitability of Australian courts to determine their long-term welfare.
7. The children were ordered returned to Australia together. The court deferred argument on the precise terms of the order and any undertakings under Article 11 of the 1996 Hague Convention.