Case law Developments in PIL

The English Court of Appeal on Consent and Court Discretion in Child Abduction Cases

In Re G (Abduction: Consent/Discretion) judgment issued on 9 February 2021 the Court of Appeal (Civil Division) of England and Wales ruled on an appeal proceeding following an order to return issued by the High Court of Justice (Family Division) based on the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The importance of the case is related to the interpretation of the provisions of Article 13 of the Convention, the existence of consent and the exercise of discretion by the requested court in ordering the return of the child when consent is established.

The proceedings were initiated by the father who consented to the mother bringing the children to England. In first instance the High Court ordered the return of the two children to Romania to their father. Following an appeal by the mother, the Court of Appeal reversed the order.

Background

Between 2015 and 2018, the parents and their children I and P have relocated twice from Romania to England. In 2018, the father returned to Romania while the mother and the two girls remained in England. In February 2019 the parents agreed to divorce in Romania. On 14 March 2019 the parents entered into a notarised agreement by which the mother could travel out of Romania with the children, without the father, for a period of three years.

During the divorce procedure the parents discovered that if they wanted their children to live in England with the mother, they had to go through a court divorce. In order to avoid this on 15 April 2019 they entered into a notarised agreement that parental authority would be exercised by both parents and that after the divorce the children would live with the mother in Romania. This is required by Article 375(2) Romanian Civil Code for the finalisation of the divorce procedure. However, in fact, the parents agreed that the children would continue to live with the mother in England.

In an attempt to reconcile, the parents agreed that the girls will spend a trial period with the father in Romania, while the mother remained in England. Thus, for a period of five months (September 2019 – February 2020) the children were with the father in Romania. The mother continued to work in England and the father and children visited for Christmas. During this period the parents agreed that it would be better overall for the children to return to live in England with the mother.

On 5 February the mother traveled to Romania to take the children back to England. When meeting the father in Romania she told him that she formed another relationship with another man. Although upset, the father gave the mother the children traveling documents, birth certificates and helped with the packing of the children’s belongings. The mother and the children remained with the mother’s parents the evening before returning to England.

Without the mother knowledge the father visited a notary on 5 February and executed a document revoking his agreement from March 2019 allowing the mother to travel with the children. The father gave the documents to his Romanian lawyer who sent it to the border authority, but did not inform the mother of the revocation of content although he bound himself to do so and was aware that the revocation was only effective from the moment of its communication to her.

By the time the revocation was registered by the Romanian authorities the next day, the mother together with the children already flew to England.

Proceedings in Romania

On 16 March 2020 the mother begun proceedings in Romania seeking an order that she did not require the father’s permission for the children to travel. She has since made further applications and the proceedings are ongoing. The Romanian Judge was aware of the proceedings in England.

Proceedings before the High Court

On 17 July 2020, the father issued proceedings in England seeking the children’s summary return to Romania. Before the judge he argued that he had showed the revocation of consent document to the mother when they first met on 5 February. However, the Judge found that while the mother was in Romania the father neither gave her the revocation document nor informed her of its existence, and she had only learned about it when she saw it on the family’s shared photo drive five days after she returned to England.

Further, the mother argued that the children were not habitually resident in Romania on 6 February 2020 so that their removal was not wrongful, that the father had consented to the removal, and that the older child objected to the return. The child’s objections defence was scarcely pursued, and the Judge rejected it.

The High Court Judge concluded that at the time of their removal the girls were habitually resident in Romania, the father consented to the removal, but based on the exercise of his discretion granted by the Convention the Judge would order to return of the children to Romania as the jurisdiction that should determine the issues related to their welfare.

Appeal Judgment

The mother sought permission to appeal on three grounds. The Judge stayed the return order and granted permission to appeal on two grounds: (1) assessment of habitual residence of the children and (2) the exercise of judge discretion in ordering the return of the children. The father thought to uphold the same order for additional reasons.

Habitual residence

With regard to the assessment of the habitual residence. The appeal judges in paragraph 22 considered that the High Court Judge:

directed himself correctly by reference to the summary of principle contained in Re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam) at [16-19], as approved with one significant amendment by this court in Re M (Children) (Habitual Residence: 1980 Child Abduction Convention) [2020] 4 WLR 137; [2020] EWCA Civ 1105 at [63]. His task was to assess the degree of the children’s integration in their Romanian social and family environment, and in doing so to focus firmly on their actual situation as opposed to weighing their comparative connections with the two jurisdictions. (…) But here they had oscillated between two countries with which in both cases they had strong social and family connections. Up to 5 February they were living with their father and grandparents under arrangements that might, had their parents reconciled, have continued along similar lines. The conclusion that they were significantly integrated, and accordingly habitually resident, in Romania is one that was clearly open to the Judge.

Therefore this ground of appeal was reject by the Court.

Consent

With regard to assessment of existence of consent, the analysis focused on the following exception in Article 13 of the Convention:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – 1. the person, institution or other body having the care of the person of the child… had consented to or subsequently acquiesced in the removal or retention; …

In summarising the Court’s practice in previous case law – Re P-J (Children) (Abduction: Consent) [2009] EWCA Civ 588 [2010] 1 WLR 1237, drawing on the decisions in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR. 174 (Wall J); In re C (Abduction: Consent) [1996] 1 FLR 414 (Holman J); In re K (Abduction: Consent) [1997] 2 FLR 212 (Hale J); and Re L (Abduction: Future Consent) [2007] EWHC 2181 (Fam); [2008] 1 FLR 914 (Bodey J). Other decisions of note are C v H (Abduction: Consent) [2009] EWHC 2660 (Fam); [2010] 1 FLR 225 (Munby J); and A v T [2011] EWHC 3882 (Fam); [2012] 2 FLR 1333 (Baker J) – the Judge concluded that the key point of analysis rested on whether the giving or withdrawing of consent by the remaining parent must have been made known by words and/or conduct to the removing parent and whether the consent or withdrawal of consent of which a removing parent is unaware can be effective. This remained to be clarified by the Court as this did not arise for consideration in the above reported cases.

The court proceeded to analyse the interpretation of the text of the Convention on this point in paragraph 26 as following:

there are compelling reasons why the removing parent must be aware of whether or not consent exists. The first is that as a matter of ordinary language the word ‘consent’ denotes the giving of permission to another person to do something. For the permission to be meaningful, it must be made known. This natural reading is reinforced by the fact that consent appears in the Convention as a verb (“avait consenti/had consented”): what is required is an act or actions and not just an internal state of mind. But it is at the practical level that the need for communication is most obvious. Parties make important decisions based on the understanding that they have a consent to relocate on which they can safely rely. It would make a mockery of the Convention if the permission on which the removing parent had depended could be subsequently invalidated by an undisclosed change of heart on the part of the other parent, particularly as the result for the children would then be a mandatory return. Such an arbitrary consequence would be flatly contrary to the Convention’s purpose of protecting children from the harmful effects of wrongful removal, and it would also be manifestly unfair to the removing parent and the children.

In applying this reasoning to the case before them, the judges found that Judge’s primary findings of fact could not be challenged. The appeal judges agreed that although the father had developed misgivings, given his action to remove the consent by the notary, this actions showed otherwise. But, in fact, his behaviour the evening before their departure showed that he had not in fact withdrawn his consent, he had delivered the children and their passports to the mother on the eve of travel and he did not show the revocation document to the mother.

The Court agreed that the ‘best guide to the father’s eventual state of mind was to be found in his own actions’ (paragraph 29) and although having second thoughts he had not in fact withdrawn his consent. Therefore, the High Court Judge was not obliged to give weight to the sending of the revocation by the lawyer to the border authority because the revocation had been made known to the mother.

The Court concluded that ‘[c]onsent under the Convention is more than a private state of mind. Even if the father had in fact decided to withdraw his consent, it was necessary for the mother to have been made aware of that before the children departed’; therefore, the finding of the first Judge was upheld in appeal.

Discretion

On the exercise of discretion with regard to ordering a summary return of the children to Romania, the appeal judges acknowledged that the exercise of the discretion under the Convention is highly case-specific and has to be carried out within a framework of policy and welfare considerations.

Therefore, the court proceeded to weight in all relevant factors: the desirability of a swift restorative return of abducted children; the benefits of decisions about children being made in their home country; comity between member states; deterrence of abduction generally; the reasons why the court has a discretion in the individual case; and considerations relating to the child’s welfare.

By relying on Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 at [12], the appeal judges found that the High Court Judge made an error of approach in attaching significant weight to the Convention considerations favouring the return based on a theoretical assessment rather than weighting in the relevant factors to the particular circumstance of the case. Thus, the Court considered it is bound to intervene for the following reasons (paragraph 49):

  • The judge had ‘approached the balancing exercise incorrectly’ with regard to his discretion.
  • ‘He then gave significant, indeed predominant, weight to policy considerations without explaining why he was doing so. He noted that the mother had been entitled to remove the children but he did not take into account that there was in consequence no reason for restorative or deterrent action. As to comity and home-based decision-making, he gave no weight to the fact that England is at least as much their “home country” as Romania – apart from the interrupted period of 20 weeks, these young children aged 6 and 3 had lived here for the last 2½ years. Nor did the Judge explain why it would be beneficial for the children to be in Romania while the Romanian court made its decisions. On the information now available, that can happen wherever the children are living, and there was no contrary information before the Judge. Moreover, as the leading proposal for the children’s future is for them to live with their primary carer in England, it might be thought that there was some advantage in the assessment being made while the children are here.
  • In contrast, the Judge gave no identifiable weight to the reason for his being invested with a discretion, namely that the father had agreed to the removal, nor to the inherent unfairness of his then succeeding in summoning the mother and children back.
  • The only other positive reason for a return order was that the children could have contact with their father in the interim, but that had to be balanced against the other consequences of summary return and the fact that it had been the father’s original decision to live in a different country to the children. The other matters (that some delay had been due to the pandemic, that the children are used to travelling, and that the mother would return with them) were not reasons in favour of a return, but factors that might mitigate its disadvantages. The Judge also accepted the father’s offer of protective measures at face value, even though his evidence had been fundamentally untruthful and he had already shown himself to have taken legal measures behind the mother’s back.
  • The welfare analysis did not address the negative impact of a summary return at all. The children appear to be settled in the colloquial sense and the fact that they have been backwards and forwards in the past is not a reason why that should continue. The Judge noted that the mother would return and could apply to relocate, but he attached no weight to the limbo in which the children would meanwhile be living, or to their important relationship with their maternal grandmother, or to the disruption caused to their mother, who is resident in England and upon whose employment the children depend, or to the prospect of the children being sent to Romania only to return to England if the mother was given permission to relocate, or to I’s wishes. All in all, an effective summary survey of the welfare issues in this case was not carried out; had it been, it would have pointed strongly towards maintaining the interim status quo’.

The Court concluded that in this case the child-centre welfare considerations outweigh policy considerations’ and that the children current situation gave rise to no obvious concerns, and there were no advantage (and considerable disadvantage) in them being moved from where their father had agreed they should be in order for a decision to be taken about their future. Therefore, the Court of Appeal set aside the order for return finding that the exercise of the discretion was erroneous.

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