A mother has been granted the application for summary return of her three children from the UK to France under the Hague Convention on child abduction.
The case of D (Children: Abduction)  EWHC 3990 (Fam) involves a family of French nationals who relocated to the United Kingdom in 2012. However, when the parents separated the next year, the mother wanted to return to France with the children and the parties were in agreement that this relocation could take place when a suitable house had been purchased in France. The mother organised this by the summer of 2014 and it was accepted that the children were habitually resident in France.
However, emails between the parties when the father had the children for five weeks in England led to a dispute about consent regarding custody. During the email correspondence the parties argued about the amount of time the father would keep the children for as well as child maintenance currently being paid. It was in this discussion that the father said ‘If you’re not happy with the maintenance you get then I can take custody back’ to which the mother replied ‘OK take custody’.
The father used this statement from the mother to claim that it was her ‘clear and unequivocal consent’ to him taking custody of the children and refused to return them on the date previously agreed, informing the mother that he had enrolled them in an English school and had registered them with the UK authorities. This caused the mother to issue proceedings for the return of the children under the Hague convention. She claimed ‘OK take custody’ was written out of anger and was in no way her agreement to the father retaining custody of the three children.
Under Article 13 of the Hague Convention, a contracting state is not bound to return a child/ children under Article 12 if there has been consent from the person in the position of care at the time of retention/ removal. However, Baker J stated in his judgement that the mother’s words were said in a heated exchange and could not be equivalent to her consent, even if the words were to be construed as consent then it was clearly retracted prior to the retention of the children. Therefore, he ordered the summary return of the children to France for the next day.
To read the full judgement, please visit The Family Law Week’s website.