I recently looked at the case law involved in the wrongful removal and/or retention of children in England, and the oft-used argument that the return of children to their resident country will expose them to physical or psychological harm.
This time I would like to look at another common development. What happens when the non-resident parent has consented to the removal of the children, but goes on to issue an application for their return?
Firstly, it must be noted that the court is not bound to order the return of the children where a proper defence under Article 13 has been raised. Article 13 (a) of The Hague Convention states that where the other person, institution or body was not actually exercising their custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention then the Court can refuse the application. As with the ‘grave risk’ defence noted above, this is quite restrictive in its application. So let’s look at how it was applied by the English court in its consideration of a recent case: A v T  FD11P02388.
In this case, a father brought proceedings for the return of his two children to Sweden on the basis that the mother had unlawfully removed and retained them in England. The mother defended the case using Article 13 (a) of The Hague Convention, as above.
Summarising the case, Mr Justice Baker stated: “The issues for this court can be summarised succinctly as follows: (1) did the father give his consent to the permanent removal of the children from Sweden or their permanent retention in this country? (2) If not, has the father subsequently acquiesced in the removal or retention of the children in England? (3) How should the court exercise any discretion that arises from a positive answer to questions 1 or 2?”
Mr Justice Baker helpfully explained the three questions above by referring to previous case law on these three specific issues:
As Mr Justice Baker pointed out, the leading case in this area is P-J (Children)  EWCA Civ 588. In that case, Lord Justice Ward summarised the following guidance in relation to consent as a defence for the wrongful removal or retention of children:
- Consent to the removal of the child must be clear and unequivocal
- Consent can be given to the removal at some future but unspecified time or upon the happening of some future event
- Such advance consent must, however, still be operative and in force at the time of actual removal
- The happening of the future event must be reasonably capable of ascertainment. The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled. Fulfilment of the condition must not depend on the subjective determination of one party, for example, “Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child.” The event must be objectively verifiable
- Consent, or the lack of it, must 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. It is not to be viewed in the context of nor governed by the law of contract
- Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed
- The burden of proving the consent rests on him or her who asserts it
- The inquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case
- The ultimate question is a simple one even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?
The word “acquiescence” may seem to have the same meaning as “consent”. In legal terms, however, it conveys a silent or inferred authority based upon the other parent’s subjective intention, not what the world may believe their intention is. For example, if the parent does nothing to stop the removal or retention of the children, then he or she may be found to have acquiesced in that removal or retention. However if there is a reasonable explanation for his or her lack of action, then acquiescence may not have been employed.
Consent is less opaque, because it is given either verbally or in writing. Therefore it is more difficult to successfully argue acquiescence as a defence than it is to argue consent.
The leading case in this area is Re H (Abduction: Acquiescence)  1 FLR 872 and this tells us more about employing acquiescence as an effective defence. In this case, the House of Lords set out the following principles:
- “The question whether the wronged parent has acquiesced in the removal and retention of the child depends upon his actual state of mind
- The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent
- The trial judge in reaching his decision will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intentions
- Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect reconciliation or agree a voluntary return of the abducted child
- There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show or have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are not inconsistent with such return, justice requires that the wronged parent be held to have acquiesced”.
If it is found that consent or acquiescence has been obtained from the other parent, the judge must then consider what discretion he or she can exercise in the case at hand.
The leading case in matters of discretion, Re M & Anor (Zimbabwe)  UKHL 55, tells us more. In this case, Baroness Hale stated the following principles:
- “…It is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention.
-  But there remains a distinction between the exercise of discretion under the Hague Convention and the exercise of discretion in wrongful removal or retention cases falling outside the Convention. In non-Convention cases the child’s welfare may well be better served by a prompt return to the country from which she was wrongly removed; but that will be because of the particular circumstances of her case, understood in the light of the general understanding of the harm which wrongful removal can do…
-  In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of the children, but also comity between the Contracting States and respect for one another’s judicial processes
- …in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare….the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not
- …the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be
- In consent or acquiescence cases…general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that [the child’s] future can be decided in [his or her] home country”.
In a separate case – C v H (Abduction, consent)  EWHC 2660 (Fam) – Lord Justice Munby mirrored this sentiment. He stated: “Discretion in every case is at large and unfettered” and that he was “inclined to think that it will be an unusual case in which consent having been established it would nonetheless be appropriate to order a return”.
Consent, acquiescence and discretion in A v T
Having now considered the three pertinent questions highlighted by Mr Justice Baker in A v T, let’s now look at this case in more detail.
A v T involved a mother, “CT”; a father, “EA” and two children aged four and two. CT was 39 and of English nationality. EA was Swedish and aged 35. The parties moved to Sweden from England in 2004 after getting engaged. They went on to marry in 2005.
The mother suffered from depression and anxiety attacks. She was very unhappy living in Sweden and felt trapped there. In 2006, she became pregnant. An agreement was consequently drawn up, whereby the father provided her with all permissions necessary to move away from Sweden with the children on either a temporary or permanent basis.
The mother gave birth to the couple’s first child in 2007 and their second followed soon after, in 2009. She continued to live in Sweden, despite being unhappy. The two subsequently agreed that by 2012 they would move to the UK and start a life here. Unfortunately, the mother’s mental health deteriorated; as did the parties relationship. In 2010, the couple commenced marriage counselling.
Another agreement was drawn up and signed by the father only a year later, which stated that: “J and E [the children] have my consent to travel with their lawful custodial mother CT… to anywhere in the world indefinitely without limitation either in place or time whatsoever”.
Afterwards, the mother brought the children to England, on 12 February 2011, for three weeks. While they were here, she requested that the father sign a further agreement. A similar contract, the new one also added: “The contents of this letter including but not limited to the consents given in it are intended to be perpetual and be of unlimited duration”. The father signed this on 4 March in the presence of a witness while the mother and children remained in England.
I believe that it is clear at this point that the father had provided his consent for the children to be removed and retained away from Sweden.
The mother and children returned to Sweden later in March. They then came back to England at the beginning of April and then back to Sweden again at the end of the month.
On 12 June the same year, the mother and children returned to England where they have remained ever since. There has however been evidence to suggest that it was, at one point, intended that they would return to Sweden.
When it became clear that the mother and the two children could be staying in England, the father began expressing a wish for them to return to Sweden. When the mother refused in October 2011, the father issued an application for the return of the children. He argued that he had not given his unequivocal consent for the children to be retained in England.
The judgment in this case was handed down by Mr Justice Baker on 9 December 2011. With regards to consent, he found the terms of the agreements to be clear, unequivocal and unambiguous. He also held that the father’s English was good enough so that the father understood each agreement. Consequently, it was not disputed that the father had not withdrawn his consent.
The father had argued that the mother’s temporary stay in England superseded his consent for permanent retention. Mr Justice Baker disagreed with this, but made it clear that his disagreement was specific only to this case. He referred to Re L (Abduction) (Future Consent)  1 FLR 872, in which Mr Justice Bodey stated that: “In a non-contracting sphere such as this a party cannot purport to act on an original wider agreement which has later been superseded by a more restrictive one”.
Since Mr Justice Baker deemed that there had indeed been consent by the father, it followed that Article 13 (a) of The Hague Convention defence had been successfully employed by the mother. As a result, he did not deal with acquiescence in great detail because it was unnecessary to do so. He did, however, comment that there was “no evidence from which the court could conclude either that the father’s subjective intention was to acquiesce or that there was any behaviour of the type which would lead the mother to conclude that the father was not serving his rights. Accordingly, had the consent defence not been made out, the defence of acquiescence would not have succeeded”.
Therefore it was ordered that there would be no return of the children. This decision also allowed the English courts to decide on matters of parental responsibility.
If you are intending to leave the country with your children, consent of the other parent is extremely important. As I have argued previously, if consent is forthcoming then it is advisable to ensure that it is enshrined in writing. It is also important to make sure that the consent is clear, unambiguous and has not been superseded. If there is a chance that it has been, you should obtain further consent.
Acquiescence is a hard defence to argue. I would therefore advise that consent be obtained either by the other parent or body with rights of custody, or parental responsibility. Alternatively, it can be obtained by the court.
If you are considering giving your consent for your children to move abroad, give plenty of consideration to the future consequences and if you will still be able to retain a proper parenting relationship with them. Always aim to implement an agreement with the other parent, detailing when and how you will see your children before you give your consent. You should also ensure that you know where your children will be living and that the removing parent will allow you to visit your children at the agreed times.
If in doubt on such a matter, always contact a lawyer. Don’t just act and hope for the best.
A University of Sheffield graduate in European, International and Comparative Law, Jennifer spent a period of time studying Finnish law at the University of Helsinki in Finland while completing her degree. She joined Stowe Family Law in July 2008 as a trainee solicitor. Now qualified, Jennifer plays a vital role in the children law and domestic violence department.