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(vi) Consequently consent could be withdrawn at any time before actual removal, and if it was so withdrawn the proper course was for any dispute about removal to be resolved by the courts of the country of habitual residence before the child was removed;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














It is unfortunate that courts are usually extremely reluctant to judge the effectiveness of other countries’ legal systems, even when such findings need to be made in international custody and visitation cases. Judges often feel great discomfort in making negative findings as to a sovereign country’s judges and courts. They may feel that they are not in a position to make fair evaluations of foreign legal systems; that they might be accused of xenophia or insensitivity to foreign ways; and that “people in glass houses shouldn’t throw stones.”
However there is no way to evaluate the true risks involved in authorizing or failing to prevent international child visitation and international child relocation without evaluating the effectiveness of the foreign legal systems that will be called upon to remedy a child’s wrongful retention in a foreign country.
Judicial reluctance to make the necessary decisions on these issues -- hard as the decision-making task may be -- endangers children when it results in a child being taken to a country which is unlikely to order the child’s return to the United States. In the face of strong evidence to the contrary -- which courts should encourage -- courts should not blithely assume that a foreign court will probably do the right thing when it comes to ordering the return (for example) to the United States of the child of a citizen of the country in question.
In some extreme cases the U.S. State Department makes a judge’s work much easier. While for diplomatic reasons the State Department is understandably reluctant to cast aspersions on many foreign countries, it does issue critical judgments as to some of the worst offenders.
Such determinations provided the basis for a Texas appeal court to uphold a decision to require supervision of all visitation between a father and his son since there was a serious risk that the father might abduct the child to Mexico. In re Sigmar, --- S.W.3d ----, 2008 WL 4816557 Tex.App.-Waco,2008.
International family lawyers know all too well that it is extremely difficult, and very often entirely impossible, to get an abducted American child back from Mexico. Although Mexico is a party to the Hague Convention on the Civil Aspects of International Child Abduction it does not do what it is required to do under the terms of that treaty.
In the Sigmar case the Texas court made findings as to the Mexican legal system and as to safety in that country by relying exclusively on the State Department’s published materials. These materials included the State Department evaluations of Mexico’s compliance with the Hague Convention, and its published warnings concerning travel in certain parts of the country and concerning trafficking in women and children for the purpose of sexual exploitation.
In reliance on such reports the trial court made rulings, which the appeal court upheld, that Mexico:












