Wednesday, June 24, 2009

Consent and the Hague Abduction Convention

The English Court of Appeal has just issued a significant ruling on the issue of consent in a Hague abduction case. In re P-J (Children) (Abduction: Consent), [2009] EWCA Civ 588; [2009] WLR (D) 207, dated June 23, 2009.

It frequently happens that one parent tells the other parent that the or she can take the children to live in a specific country at some point in the future or upon the fulfillment of a specified condition.

Does that count as consent if:

  • The children are taken to the other country after the expiration of a considerable period of time from the date of the initial discussion; or
  • The consent is retracted; or
  • The taking parent covertly removes the children, knowing or apparently knowing that the other parent would object?

The Court of Appeal upheld the trial court’s order that children must be returned to Spain from Wales on the ground that although the husband had at an earlier time agreed that the mother could remove the children from their habitual residence in Spain 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.

Lord Justice Ward ruled that, 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(vi) Consequently consent could be withdrawn at any time before actual removal, and if it was so withdrawn the proper course was for any dispute about removal to be resolved by the courts of the country of habitual residence before the child was removed;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.