K v E

In Hague Convention proceedings, consent to removal is a fact-specific exception which must be proved by the removing parent. It must be real, clear and unequivocal, and may be inferred from conduct. The court assesses the reality of family life and breakdown, including what the remaining parent said and did, rather than applying contractual principles.

For Article 13(b), the court evaluates the alleged risk at its highest without conducting a full fact-finding exercise. Domestic abuse and the taking parent’s mental health may be considered cumulatively. The court must then assess whether protective measures meet the grave risk. The jurisdiction is summary and does not permit a deferred or “wait and see” return based on hoped-for future improvement.

The applicant father sought the summary return to Germany of his two-year-old daughter, who had travelled from Germany to England with the respondent mother. The father said the journey was an agreed four-week holiday. The mother said he knew and consented to her permanent relocation with the child.

The mother relied on consent and, alternatively, Article 13(b), alleging domestic abuse and relying on expert evidence of severe depression and post-traumatic stress disorder. The central questions were whether the father had consented to the removal, whether return would expose the child to a grave risk of harm or an intolerable situation, and, if an exception were established, whether the court should nevertheless exercise its discretion to order return.

1. Consent. Consent is a fact-specific exception which must be proved to the civil standard. It must relate to relocation, be real, clear and unequivocal, and may be inferred from conduct. The court considered the parties’ practical arrangements and the context of the marital breakdown. The mother’s open packing and shipment of substantial belongings, the father’s assistance, his failure to insist on return after four weeks, and his contemporary account to a psychiatrist that mother and child had moved to London supported consent.
2. The judge accepted the mother’s evidence that she had told the father the marriage was over and that she was moving to London with the child. The father had consented, albeit reluctantly. There had therefore been no wrongful removal and the summary return application failed on that basis.
3. Article 13(b). The mother’s alternative defence was also made out. The court was not required to determine the disputed domestic-abuse allegations. It assessed the asserted risk at its highest and considered the allegations cumulatively with the mother’s severe depression and PTSD. The expert evidence established a grave risk that return, or separation of the child from the mother, would cause serious deterioration in the mother’s mental health and impair her ability to care for the child, placing the child in an intolerable situation.
4. Available medical care in Germany, financial support, accommodation, non-contact undertakings and assistance with travel did not sufficiently address the risk. The mother’s need for immediate family support, the likely isolation in Germany and the possibility that proximity to the father would trigger her PTSD were material. Returning the child alone to the father would increase, rather than manage, the risk, given his lack of previous day-to-day care.
5. The court rejected a deferred return intended to allow treatment to stabilise the mother’s condition. The Convention jurisdiction required a summary decision on the evidence at the hearing date and was not a continuing or “wait and see” jurisdiction. If consent had not been established, the court would nevertheless have exercised its discretion not to order return.
6. The father’s application for the child’s summary return to Germany was dismissed.