JC v SS

In a Hague Convention application, consent to relocation is a fact-sensitive question assessed objectively from all the circumstances. It need not be written or unconditional, and it may be inferred from conduct. A clear consent remains effective unless withdrawn before removal and the withdrawal is communicated.

Where consent or acquiescence is established, the removal or retention is not wrongful, although the court retains a discretion whether to order return. That discretion is informed by the children’s objections, Convention policy and any Article 13(b) risk. Protective measures must be assessed concretely and holistically, including their likely effectiveness and the consequences of non-compliance. A grave risk to children may arise from the effect of return on a vulnerable parent’s ability to care for them.

The applicant father sought the summary return of four children to the Republic of Ireland under the Hague Convention, after the respondent mother remained in England with them following an agreed trip in December 2022. The father had rights of custody and the children had been habitually resident in Ireland.

The mother relied on consent, acquiescence, the children’s objections and Article 13(b), alleging serious domestic abuse and grave risks to the children and to her mental health. The court considered whether the children’s retention was wrongful, whether the relevant defences were established, and whether return should nevertheless be ordered in the exercise of the court’s discretion.

1. Consent and wrongful retention. The father had clearly consented to the children’s permanent relocation to England. The signed Consent Relocation Agreement, the circumstances in which it was prepared and witnessed, the parties’ communications, and the father’s stated intention to move to England supported that conclusion. The absence of a fixed departure date and the booking of return tickets did not make the consent conditional or ineffective.
2. Consent is assessed objectively in the context of family life. It may be inferred from conduct and need not be in writing or on particular terms. Any withdrawal must be communicated before removal. Nothing said or done by the father after the children arrived amounted to an effective withdrawal.
3. The father had also acquiesced in the children remaining in England. His contemporaneous communications and conduct led the mother reasonably to understand that he was not asserting a right to summary return. Accordingly, the removal and retention were not wrongful, and the court was not obliged to order return.
4. Children’s objections. Each child had expressed a clear objection to returning to Ireland. The gateway threshold was crossed and the discretion was at large. The court gave substantial weight to the children’s coherent concerns about safety, their settled circumstances in England and the adverse effect of separation from their mother, while also considering Convention policy.
5. Article 13(b). The court considered the risks concretely, including the mother’s psychological vulnerability, the likely effect of return on her ability to function and care for the children, the children’s own fears, and the adequacy and enforceability of the protective measures offered. The measures did not sufficiently neutralise the grave risk that deterioration in the mother’s health would place the children in an intolerable situation.
6. The Article 13(b) defence was established narrowly. Cumulatively, the consent finding, the children’s objections, the unresolved domestic-abuse allegations and the Article 13(b) risk outweighed Convention policy considerations. The application for return was refused in respect of all four children.