EF v EF

Consent to removal under the 1980 Hague Convention must be clear and unequivocal, assessed in the practical context of family life rather than by contractual analysis. Silence or a failure actively to object will not ordinarily establish consent.

Acquiescence requires proof of the wronged parent’s actual state of mind, unless words or conduct clearly led the other parent to believe that summary return would not be pursued. Informal negotiations aimed at peace, reconciliation, contact or financial arrangements do not establish acquiescence unless there is a clear agreement that the child may remain in the new country.

A foreign court’s procedural conduct will rarely amount to consent or acquiescence. Under Article 13(b), a grave-risk defence may be defeated by effective, enforceable protective measures and the courts of the child’s habitual residence should ordinarily determine future welfare arrangements.

The applicant father sought the return of his two-year-old son to Romania under the 1980 Hague Convention, alleging wrongful removal by the respondent mother to England. The mother relied on consent, acquiescence and Article 13(b), alleging serious domestic abuse and threats.

The mother contended that the father had consented during a telephone conversation before removal and had later acquiesced through discussions mediated by Roma community elders. She also argued that the Romanian courts had acquiesced by conducting domestic proceedings without securing the child’s immediate return.

The central issues were whether consent or acquiescence had been established and, if not, whether the child would face a grave risk of harm or an intolerable situation on return, having regard to proposed protective measures.

1. Consent. The mother had not established clear and unequivocal consent before removal. The conversation relied on was directed principally to reconciliation, did not identify the intended departure, and did not contain an express agreement that the child could relocate to England. The father’s immediate demands for return and subsequent proceedings were inconsistent with consent.
2. Acquiescence. Neither limb identified in In re H was made out. The discussions through community elders produced no concluded agreement that the child would remain in England. The parties received materially different accounts of the discussions. Any payment was directed principally to ending threats and securing peace or a power of attorney, not to establishing the child’s residence in England. The negotiations were therefore the type of exploratory arrangements considered in P v P, rather than clear acquiescence.
3. Foreign court acquiescence. The court accepted that an institution or other body could in principle fall within Article 13, following NM v SM and agreeing with the proposition in London Borough of Haringey. However, the English court should not ordinarily determine that a Romanian court had acquiesced to an alleged abduction. The Romanian court had not made such a determination, and its domestic proceedings did not justify that conclusion.
4. Article 13(b). Taking the mother’s factual case at its highest, the allegations were potentially sufficient to establish the gateway. The assessment remained child-focused and concerned future risk. The mother’s return would not be to live with the father, she had family support in Romania, and there was no evidence that her mental health would prevent her caring for the child. Romanian legal and protective mechanisms, together with the father’s undertakings and conditions, sufficiently ameliorated the risk.
5. The return order was made within 14 days, subject to payment of return costs, a €4,000 payment, confirmation that the Romanian criminal complaint would proceed no further, specified undertakings and protective measures, registration of the order in Romania, and a stay until registration. Decisions about residence and contact were left to the Romanian courts.