Person D v Person E

In Hague Convention proceedings, a defence of consent requires cogent evidence that the left-behind parent clearly and unequivocally consented to the child’s removal. Any advance consent must remain operative when removal occurs and may be withdrawn beforehand. The court must focus principally on the remaining parent’s words and conduct, assessed chronologically. Earlier willingness to contemplate relocation does not establish consent at the date of removal where subsequent arrangements and conduct are inconsistent with that conclusion.

The proceedings concerned the alleged wrongful removal of five children from the United States to England in June 2023. The children’s habitual residence in the United States and the wrongful nature of the removal were accepted, subject to the mother’s defences. The father denied consenting to the permanent removal. The court heard oral evidence and submissions on consent as a preliminary issue, against a background of earlier temporary departures, separation, discussions about relocation, a passport application, a New Jersey order concerning support and parenting time, and the father’s actions after the children’s departure.

The central issue was whether the mother had proved, on the balance of probabilities, that the father’s consent remained valid and operative when the children left for England.

1. Applicable law. The court adopted the summary of the law in G (Abduction: Consent/Discretion) [2021] EWCA Civ 139. The mother bore the burden of proving consent on the balance of probabilities. Consent had to be clear and unequivocal, and any advance consent had to remain operative at the time of removal. Consent could be withdrawn before removal.
2. Assessment of the evidence. The father’s earlier conduct provided some evidence that he had contemplated the mother and children going to England. This included discussions about obtaining the youngest child’s passport and communications concerning a possible authorisation to leave the country. Those matters had to be assessed in their chronological setting and did not, without more, establish continuing consent.
3. Subsequent conduct. The New Jersey order of 5 June 2023, providing for support in the United States and regular parenting time there, was inconsistent with an agreement that the mother would imminently relocate permanently with the children. The mother’s secretive departure, the father’s immediate police complaint and his application to the local court for orders requiring the children’s return were wholly incompatible with consent at the time of removal.
4. Disposition. The evidence did not satisfy the court that the father consented to the children’s removal from the United States to England in mid-June 2023. The mother’s defence of consent was rejected. Further directions might be required concerning the remaining proceedings.