AB v CD

In Hague Convention proceedings, a parent’s oral consent to a child’s relocation may be established on the balance of probabilities. Consent must be clear and unequivocal, but it need not be written or corroborated. A parent who consented may withdraw that consent before the child acquires habitual residence in the new state.

Where consent is withdrawn, the court retains a discretion whether to order return. In exercising it, the court must assess the actual circumstances of return, including the child’s objections and any grave risk of harm or intolerability under article 13(b). The welfare and psychological circumstances of the child and accompanying parent may be closely connected.

The applicant father sought the summary return of his two children to Spain under the Hague Convention, alleging that the respondent mother had wrongfully removed or retained them in England. The mother argued that the father had consented to the move, that the children objected to returning, and that return would expose them to a grave risk of harm or an intolerable situation.

The court heard oral evidence principally on consent. It considered whether the father had agreed that the mother and children should move to England, whether that consent was later withdrawn before a change of habitual residence, and whether the discretionary defences under article 13 applied.

1. Consent. The mother proved on the balance of probabilities that the father had clearly and unequivocally consented to the children moving to England. Oral evidence from the mother was capable of establishing consent even without corroboration. The court assessed the parties’ words and conduct in the context of the family relationship and its breakdown.
2. The removal was therefore not wrongful under article 3. The mother’s alternative case based on acquiescence did not need to be determined.
3. Withdrawal and habitual residence. Following In re D, a parent who has consented may withdraw that consent while the children remain habitually resident in the state of origin. The father withdrew consent after learning of the children’s allegations, but the children had not yet acquired habitual residence in England.
4. Child objection. EF had crossed the gateway under article 13. She genuinely objected to returning to Spain and was terrified of the prospect, although the court made no findings about whether the underlying allegations of abuse were true. It was unnecessary to decide whether GH had a Convention-level objection.
5. Article 13(b). Applying In re E, the court considered the actual circumstances of return. The mother faced uncertainty about lawful residence, work and accommodation, possible criminal proceedings, dependence on the father’s family, and a real risk of unwanted contact by the father. In combination with EF’s psychological state, those circumstances would place her in an intolerable situation.
6. The court exercised its discretion not to order return. The children were settled in England and the uncertainties and risks associated with return outweighed the Convention’s return policies. The application was dismissed.