LGL v MC

Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a child wrongfully removed from the state of habitual residence must be returned unless a Convention defence is established. Consent to removal must be clear and unequivocal, remain operative when removal occurs, and is assessed factually in the context of family life. Acquiescence depends primarily on the left-behind parent’s actual state of mind, subject to the exceptional case where outward conduct clearly and unequivocally represents that summary return will not be sought. Article 13(b) requires a grave risk of physical or psychological harm, or an intolerable situation; a comparative assessment of welfare and material advantage between countries is ordinarily for the court of habitual residence.

The mother applied under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the summary return to Ecuador of her three children, whom the father had taken to England in April 2024. The parties agreed that the children were habitually resident in Ecuador and that the mother was exercising rights of custody at the time of removal.

The father relied on consent, acquiescence and Article 13(b). He also argued that the children’s settled life and superior material circumstances in England justified refusing return. The central issues were whether any Convention defence was made out and, if so, whether the court should exercise its discretion to order return.

1. The children had been habitually resident in Ecuador and were removed in breach of the mother’s rights of custody. Their removal was therefore wrongful under Article 3, and Article 12 required summary return unless a defence was established.
2. The defence of consent failed. Applying Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051, consent had to be clear and unequivocal. Any advance consent had to remain operative at the time of removal. The February 2022 power of attorney authorised specified travel and documentation steps but did not authorise permanent relocation to England. The mother’s conduct in November 2023, and the father’s failure to disclose his April 2024 plans, demonstrated that no operative consent existed.
3. The defence of acquiescence failed. Applying Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 and Re J (Habitual Residence: Acquiescence) [2023] EWHC 3141 (Fam), the relevant question was the mother’s subjective state of mind. Her delay, dependence on the father for contact, refusal to support Spanish citizenship applications and immediate action after obtaining legal advice did not show reconciliation to the children’s continued presence in England. Her conduct also fell short of the exceptional case in which outward behaviour clearly and unequivocally indicates that summary return will not be sought.
4. Article 13(b) was not established. The children had lived happily in Ecuador, were well cared for, missed their mother and had no evidence of poverty, harm or intolerability there. A return after more than a year in England would be significant but was not shown to create a grave risk. The comparative welfare merits of residence in Ecuador or England were matters for the Ecuadorian court.
5. The children were ordered to return summarily to Ecuador. Even if consent or acquiescence had been established, the judge stated that she would have exercised the discretion to order return because welfare proceedings were already underway in Ecuador and that court was best placed to determine residence and contact.