M v F

In Hague Convention proceedings, consent to a child’s removal must be clearly and unequivocally established on the facts. Consent obtained through material deception or misrepresentation is invalid.

The Article 13(b) defence requires consideration of the concrete situation the child would face on return, including available protective measures. Where the defence is made out, the court retains a broad discretion. No additional test of exceptionality applies, and Convention policy must be weighed with the child’s circumstances and welfare.

The mother applied for the return of her 16-month-old son to Portugal under the 1980 Hague Convention, following his removal from Portugal to England by his father and placement with his paternal uncle and aunt. She alleged that the removal occurred without her consent and that she had subsequently been stranded in Pakistan.

The father and the other respondents relied on the Article 13(a) consent defence and the Article 13(b) grave-risk defence. The mother alternatively sought orders under the inherent jurisdiction for the child to be placed in her care in Pakistan. The court determined the factual circumstances of the removal and the Hague Convention application, while reserving a final welfare determination.

1. Factual findings. The child was habitually resident in Portugal and was wrongfully removed without the mother’s consent. The mother was taken to Pakistan against her will and stranded there. The father and his family had exercised controlling and coercive behaviour, including physical abuse and conduct intended to exclude the mother from the child’s life.
2. Article 13(a). Applying the principles summarised in Re G (Children) [2021] EWCA Civ 139, consent is a fact-specific question. It must be clear and unequivocal, may be given by words or conduct, and must relate to the removal contemplated by both parties. Consent procured by material deception or misrepresentation is ineffective. The respondents failed to establish consent.
3. Article 13(b). The defence was not made out if the mother could enter and reside in Portugal. Portugal was the child’s habitual-residence country, the father lived there, and the Portuguese authorities and courts were able to address welfare and protection issues. If the mother could not return to Portugal, however, the defence was established. Returning the child without an obvious carer, while separating him from the uncle and aunt who had provided good care and exposing him to the consequences of the father’s grave domestic abuse, would place him in an intolerable situation.
4. The court applied Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 2 and Re P (A Child) (Abduction: Consideration of Evidence) [2017] EWCA Civ 1677. The assessment had to address the concrete circumstances on return and any effective protective measures.
5. Discretion and orders. Following Re M (Abduction: Zimbabwe) [2007] UKHL 55, no test of exceptionality was to be imported into the discretion. Convention policy, comity and the child’s welfare had to be weighed together. A return order was made but suspended pending the mother obtaining a visa to re-enter Portugal. The application to place the child immediately in the mother’s care was not determined, because that required a welfare enquiry. A guardian was appointed, welfare statements were ordered, and interim unsupervised contact was directed.