G (Abduction: Consent/discretion)

Consent to removal under the 1980 Hague Convention must be clear, unequivocal and operative when the child leaves. Consent and its withdrawal must be made known to the removing parent by words or conduct. An undisclosed change of mind cannot withdraw consent effectively.

Once consent is established, the court has a discretion whether to order summary return. It must assess the weight of policy and welfare considerations in the particular circumstances, without requiring compelling welfare reasons to override policy. Consent may substantially reduce the weight of restorative return and deterrence. The importance of home-based decision-making and comity depends on the facts and the consequences of return for the child.

The mother appealed against an order requiring her two children, aged six and three, to return summarily to Romania under the 1980 Hague Convention. The father, who lived in Romania, had applied for their return from England, where they lived with their mother. The family had previously lived in both countries. Following an attempted reconciliation, the children spent approximately twenty weeks in Romania before their mother brought them to England.

Nicholas Cusworth QC, sitting as a deputy High Court judge, found that the children were habitually resident in Romania immediately before removal. He also found that the father had consented to their return to England and had maintained that consent despite privately obtaining a document revoking an earlier travel permission. He nevertheless exercised his discretion to order return.

The mother challenged habitual residence and the exercise of discretion. The father sought to uphold the return order by a Respondent’s Notice challenging consent. The central issues concerned effective withdrawal of consent and the proper balance between Convention policy and welfare after consent had been established.

1. The appeal was allowed and the return order set aside. Peter Jackson LJ, with whom Baker and Nugee LJJ agreed, upheld the findings on habitual residence and consent. The decision was remade by refusing summary return (paras [22], [33], [50]–[53]).

2. Habitual residence required assessment of the children’s integration in their actual social and family environment. Their wider history was relevant, but the inquiry concerned their situation immediately before removal rather than comparative connections with competing jurisdictions. Their stay in Romania being a trial did not prevent a finding of habitual residence, given their substantial integration and existing connections there (para [22]).

3. The removing parent had to prove clear and unequivocal consent to the civil standard. The inquiry reflected the realities of family life rather than contractual principles. Consent could be expressed through words or conduct and could remain valid despite serious reservations. It had to relate to the contemplated removal; the medical concept of fully informed consent supplied no useful analogy (paras [25], [29]–[30]).

   Consent or its withdrawal had to be communicated by words or conduct. An undisclosed change of mind could not invalidate permission on which the removing parent relied. The father’s conduct supported the finding that he had maintained consent. Independently, any private withdrawal would have been ineffective without the mother’s awareness before departure (paras [26]–[33]).

4. The discretion arising under the Convention was at large. Following Re M (Children), [2007] UKHL 55, the court had to weigh policy, the circumstances creating the discretion, and the child’s rights and welfare without adding an exceptionality requirement. The observations about possible speedy return in consent cases required careful reading. The earlier analysis in Re K (Abduction: Consent), [1997] 2 FLR 212, supported giving restorative return and deterrence relatively slight weight where consent existed. Home-based decision-making and comity depended critically on the facts and welfare consequences (paras [34]–[42]).

5. The judge erred by treating policy considerations as requiring pressing or compelling welfare reasons to override them. Appellate restraint in reviewing discretionary decisions remained applicable, but his erroneous approach and defective balancing required intervention. He gave insufficient weight to consent, the unfairness of requiring a return after agreement, the children’s substantial English connections and the disadvantages of disruption. Matters mitigating return’s disadvantages did not themselves favour return. The father’s protective proposals also required scrutiny in light of his unreliable evidence (paras [43]–[49]).

   Welfare considerations greatly outweighed policy considerations. The Romanian proceedings could continue while the children remained in England, and return offered considerable disadvantages without an identified corresponding benefit (paras [49]–[51]).

6. The father’s Respondent’s Notice required no permission to cross-appeal because he sought the same order on additional grounds rather than a different order (para [20]).

• Court of Appeal (Civil Division): In [2021] EWCA Civ 139 , unanimously allowed the mother’s appeal on discretion, set aside the return order and refused summary return. The findings on habitual residence and consent were upheld.
• Court of Appeal (permission stage): Moylan LJ stayed the return order and granted permission to challenge habitual residence and discretion. Permission to challenge the treatment of consent as an exception to return rather than an answer to wrongfulness was refused.
• High Court, Family Division: On 13 November 2020, Nicholas Cusworth QC, sitting as a deputy High Court judge, found habitual residence in Romania and consent to removal, but exercised his discretion to order the children’s return by 30 November 2020.