G (Abduction: Consent/discretion)

For the consent exception under article 13(a) of the 1980 Hague Convention, consent must be clear, unequivocal and operative when the child is removed. It is assessed realistically from all the circumstances, particularly the remaining parent’s words and conduct. A withdrawal of consent is ineffective unless it is communicated to the removing parent before departure.

Where consent is established, the discretion to order return is at large. The court must weigh Convention policy, the reason for the discretion, and the child’s welfare in the particular case. It must not require pressing welfare reasons to displace a presumed preference for return. In a consent case, deterrence and restorative-return considerations may carry little weight.

The father sought the summary return of two young children from England to Romania under the 1980 Hague Convention. A Deputy High Court Judge found that the children were habitually resident in Romania immediately before their February 2020 removal. He also found that the father had consented to their return to England, but exercised the resulting discretion to order their return to Romania.

The mother appealed the findings on habitual residence and the discretionary return order. By a respondent’s notice, the father challenged the finding of consent. The central issues were whether the father’s undisclosed revocation had withdrawn his consent and whether the judge had lawfully exercised the Convention discretion after consent was established.

1. Appeal allowed. The court upheld the findings that the children had become habitually resident in Romania and that the father consented to their removal to England. It set aside the order requiring their summary return.

2. Habitual residence depended on the children’s actual integration in their Romanian social and family environment immediately before removal. The trial character of the arrangement and the children’s earlier connection with England were relevant, but did not prevent the judge from finding sufficient integration in Romania.

3. The father’s consent was established. Consent under the Convention is a factual and realistic inquiry, not a contractual one. It may be inferred from conduct, and it must be clear, unequivocal, real and operative at removal. Although consent may be withdrawn before removal, a withdrawal must be made known to the removing parent. An undisclosed change of mind is not an effective withdrawal. On the unchallenged findings, the father delivered the children, passports and travel documents to the mother without communicating any withdrawal.

4. The judge nevertheless erred in exercising the article 13 discretion. Under Re M (Children) [2007] UKHL 55, the discretion is at large and intensely case-specific. The court must weigh Convention policies alongside the reason why discretion arose and the child’s welfare. It must not impose an additional requirement for pressing or compelling welfare reasons to override Convention considerations.

5. Here the removal was consensual and not clandestine. Accordingly, restorative and deterrent policies had little weight. The judge gave no sufficient weight to the unfairness of requiring the mother and children to return after the father had agreed to their move, or to the disruption, uncertainty and welfare consequences of a return. The children’s welfare greatly outweighed the policy factors. The Court of Appeal remade the decision and refused a summary return order.

• Court of Appeal (Civil Division): Allowed the mother’s appeal and set aside the order for summary return. [2021] EWCA Civ 139

• High Court of Justice, Family Division: Nicholas Cusworth QC, sitting as a Deputy High Court Judge, ordered the children’s return to Romania on 13 November 2020 after finding habitual residence in Romania and consent, but exercising the Convention discretion in favour of return.