TB v ISG

In summary return proceedings under the Hague Convention 1980, consent under Article 13(a) must be clear and unequivocal, assessed on the balance of probabilities in the context of family life and the parties’ words and conduct.

For Article 13(b), the court must first assess whether the allegations, taken at their highest, would establish a grave risk to the child. It must then examine concretely how any risk can be addressed, including the efficacy of protective measures and access to justice in the requesting state. The process remains summary, but requires an evaluative assessment of the evidence. Where neither defence is established, summary return is mandatory, subject to appropriate conditions and undertakings.

The father applied for the summary return to Spain of three young children removed by the mother to England. The application was made under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention.

The mother relied on Article 13(a), alleging that the father had consented to the removal, and Article 13(b), alleging grave risks arising from domestic abuse, immigration uncertainty, inadequate financial provision, possible separation and possible removal of the children to Morocco.

The court also considered preliminary applications for oral evidence and an adjournment, and assessed protective measures offered by the father. The central issues were whether either Convention defence was established and, if so, whether the children should nevertheless be returned.

1. Preliminary applications. The applications for oral evidence on consent and an adjournment for further evidence were refused. Hague proceedings are summary and intended to be completed promptly. Oral evidence is exceptional, and the existing material permitted a reasoned decision.
2. Article 13(a). Applying the approach in Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139, the mother had to prove clear and unequivocal consent on the balance of probabilities. Consent could arise from words or conduct, but had to relate to a removal broadly within the contemplation of both parties and remain operative at the time of removal. The father’s conduct, including reporting the removal immediately to the police, was inconsistent with consent. The mother’s late notification, lack of practical arrangements and failure to tell social services of any consent supported a clandestine removal. The defence failed.
3. Article 13(b). The court applied the sequential approach summarised in Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123. It considered each allegation at its highest, while also undertaking an evaluative assessment. The allegations of domestic abuse, immigration difficulty, financial insecurity, possible separation and possible abduction to Morocco did not establish a grave risk of physical or psychological harm or an intolerable situation.
4. The court examined the concrete circumstances of return. The mother and children would have separate accommodation, continuing Spanish social-services support, financial assistance and protection through the Spanish courts. The father’s undertakings, including payment of rent and maintenance, withdrawal of the complaint, non-violence and non-removal to Morocco, sufficiently addressed any residual risk. The court considered the efficacy and enforceability of protective measures under the 1996 Hague Convention, including Articles 11 and 23.
5. Neither defence being established, Article 12 required summary return to Spain. Return was ordered by 27 June 2022, conditional on evidence that the father had withdrawn his complaint and on payment of €800 in advance. The stated undertakings were imposed.

First instance decision. The judgment does not state any prior appellate history.