M v B

In proceedings under the 1980 Hague Convention, consent to removal under Article 13(a) is a fact-specific question assessed by reference to the parties’ words, conduct and the realities of family life. Clear and unequivocal consent may be inferred from conduct and need not be written.

Where an Article 13(b) risk is established on the allegations taken at their highest, the court must assess whether protective measures sufficiently ameliorate that risk. A child’s objection is a gateway to an unfettered discretion, not a determination of the application. In exercising that discretion, the court must weigh Convention policy, the reasons for the exception and the children’s welfare in the particular circumstances.

The Mother applied under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for the summary return to the Czech Republic of two children who had travelled to England with their Father. It was common ground that the children had been habitually resident in the Czech Republic and had been wrongfully retained in England.

The Father relied on consent under Article 13(a), grave risk under Article 13(b), and the children’s objections under Article 13. The court heard oral evidence on the disputed consent issue and considered Cafcass evidence concerning the children’s views, alleged harm and the Father’s recordings.

The central issues were whether the Mother had consented to the children’s relocation, whether protective measures addressed any Article 13(b) risk, whether either child satisfied the child-objections gateway, and how the resulting discretion should be exercised.

1. Consent. The Father discharged the burden of proving, on the balance of probabilities, that the Mother had clearly and unequivocally consented to both children moving to the UK to live with him. The court applied the fact-specific approach in Re G (Children: Abduction: Consent: Discretion) [2021] EWCA Civ 139. The contemporaneous messages, the recorded WhatsApp call, the Mother’s conduct in facilitating travel, and her references to collecting the children’s belongings were inconsistent with consent limited to a holiday. Her contradictory written and oral accounts made her an unreliable witness.

2. Article 13(b). Taking the allegations of physical abuse at their highest, the court found that continued abuse would expose the children to physical or psychological harm and an intolerable situation. The court then assessed the protective measures proposed, including support for the Mother and [B], arrangements for return and measures capable of incorporation into orders under article 11 of the 1996 Hague Convention. Those measures were sufficient to ameliorate the grave risk.

3. Child objections. [B], aged 11, objected to return to the Czech Republic and had attained sufficient age and maturity for his views to be taken into account. His objections related both to his relationship with the Mother and to his school experience. [N] did not satisfy the maturity requirement. [B]’s objection was not determinative.

4. Discretion. The discretion was at large. Because consent had been established, the policy of deterring wrongful removal carried relatively little weight. Greater weight was given to [B]’s strong and apparently authentic objections, the children’s welfare, concerns about their treatment in the Czech Republic, their settlement in England, their wider family connections and the risk of separating the siblings. The Father’s conduct in leading [N] and blocking the Mother’s contact was also relevant. The court declined to exercise its discretion to order return.

5. The Mother’s application for return was refused. The parties were invited to agree a draft order.