Re DQ (A Child) (Abduction: Defence of Consent)

In a Hague Abduction Convention application, the defence of consent succeeds where the evidence establishes the left-behind parent’s clear and unequivocal consent to the child’s permanent removal. Consent need not be recorded comprehensively in a written document. It may be established from oral discussions and the parties’ subsequent conduct, assessed in the circumstances as a whole.

Where consent is established, retention is not wrongful and a summary return order is unavailable.

The mother applied for the summary return of her eight-year-old daughter to Spain. The child had travelled from Spain to England in October 2021 to live with her father. The mother said that she had agreed only to a temporary arrangement of one year. The father contended that she had consented to the child’s permanent relocation to England.

The court heard oral evidence from both parents, the paternal grandparents and a CAFCASS officer. The central issue was whether the mother had consented to the permanent removal. The court therefore did not need to determine habitual residence or the child’s objections to return.

1. Application dismissed. The mother had consented to the child’s permanent removal from Spain to England. The father had therefore not wrongfully retained the child.
2. The paternal grandparents gave compelling and detailed evidence about their discussions with the mother in September and October 2021. The court accepted that, on 13 October 2021, she gave clear and unequivocal consent to the child permanently living with her father in England.
3. The mother’s signed document of 15 October 2021 stated that she agreed to the child residing in the United Kingdom with her father. Although it did not expressly use the word permanently, it was prepared for travel purposes and was not treated as a complete record of the parties’ agreement. The oral discussions were the material evidence of consent.
4. The court also relied on subsequent conduct reinforcing the finding of permanent consent. This included the mother’s enquiries of an immigration solicitor about relocating to England and her agreement that the child should travel to Spain in August 2022 and return to England on 4 September, notwithstanding her case that the child should then have been in Spain for school.
5. Habitual residence was not determined because it was unnecessary. The judge nevertheless stated that, if required, he would have found that the child’s habitual residence had transferred from Spain to England, having regard to her social integration, schooling and family relationships. Any further applications were to be dealt with in the local Family Court.