In re P-J (Children) (Abduction: Consent); [2009] EWCA Civ 588; [2009] WLR (D) 207

CHILDREN — Custody rights — Breach — Children habitually resident in Spain — Mother removing children to Wales — Whether father “consenting” to removal for purposes of Hague Convention — Child Abduction and Custody Act 1985, Sch 1, art 13(a)

In re P-J (Children) (Abduction: Consent)

[2009] EWCA Civ 588; [2009] WLR (D) 207

CA: Ward, Wilson LJJ: 23 June 2009

Effective “consent” to the removal of a child from the jurisdiction of the state of its habitual residence could in principle be given in advance by an eligible person. However, for reliance to be placed on the terms of art 13(a) of the Hague Convention, whereby a requested state was not bound to order the return of such a child if the person having care of the person of the child had “consented to or subsequently acquiesced in” the removal, the consent had to subsist at the time when the child was in fact removed.

The Court of Appeal so stated when dismissing the appeal of the mother from a decision of Sir Mark Potter P, sitting in the Family Division on 27 March 2009 upon the hearing of a summons issued by the Spanish husband, the first respondent, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980, as scheduled to the Child Abduction and Custody Act 1985, and Council Regulation (EC) No 2201/2003 (“the Brussels II Revised Regulation”), and seeking the return of his five children from Wales to Spain, whereby he held that: (i) following the children’s removal by the mother there had been no change in the children’s habitual residence within Spain; (ii) although the husband had at an earlier time agreed that the mother could remove the children should an attempted marital reconciliation fail, he had none the less clearly objected at the time when the children were in fact being removed, and the earlier consent was not operable; and (iii) the mother be ordered forthwith to return the children, or cause their return, to Spain. One child, who had alerted her father to the imminent removal, appeared as the second respondent by her guardian ad litem.

WARD LJ said that, on the authorities, Sir Mark Potter’s decision as to habitual residence could not be impugned. As to “consent” for the purposes of art 13 of the Hague Convention, the following principles applied: (i) consent to removal of a child had to be clear and unequivocal; (ii) consent could be given to the removal at some future but unspecified time or upon the happening of some future event; (iii) such advance consent had, however, still to be operative and in force at the time of the actual removal; (iv) the happening of the future event had to be reasonably capable of ascertainment, and in particular had not to depend on the subjective determination of one party; (v) consent, or the lack thereof, had to be viewed in the context of the realities of family life, or more precisely in the context of the realities of the disintegration of family life; (vi) consequently consent could be withdrawn at any time before actual removal, and if it was so withdrawn the proper course was for any dispute about removal to be resolved by the courts of the country of habitual residence before the child was removed; (vii) the burden of proving the consent rested on the person asserting it; (viii) the inquiry was inevitably fact-specific; (ix) the ultimate question was a simple one, viz whether the other parent had clearly and unequivocally consented to the removal. In the instant case, the mother knew, or suspected, that the husband would not consent, or at the least was likely to object, to the children being removed from Spain, and she had embarked on a clandestine removal; and the husband, once alerted, had clearly objected, as the mother well knew. The fact that he had formerly consented to removal in certain circumstances did not mean that he consented to the actual removal when it occurred; and consent clearly had to subsist at that time.

WILSON LJ gave a concurring judgment.

Appearances: Clive Newton QC and David Blake (instructed by Mark Saunders & Co) for the mother; Teertha Gupta (instructed by Dawson Cornwell) for the husband; Richard Harrison (instructed by Lyons Davidson) for the guardian.

Reported by: Matthew Brotherton, barrister