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'OK take custody' email did not constitute 'clear and unequivocal consent'

Mr Justice Baker grants mother’s application for the summary return of three children to France

In D (Children: Abduction) [2015] EWHC 3990 (Fam) Mr Justice Baker has granted application by a mother under the Hague Convention on Child Abduction and Brussels IIR for the summary return of three children to France. In an exchange of emails with the father had told the father: "OK take custody". He claimed that this was a clear and unequivocal to his retaining the children. The court disagreed.

The mother, father and their three children (aged six, four and two) were all French nationals. They lived together in France until the summer of 2012 when they moved to England.

The parties' relationship ended in March 2013 and the mother sought leave to remove the children from the jurisdiction and to return them to France.

Eventually, the parties agreed that the mother could return to France with the children when a suitable house had been identified and purchased. This occurred in August 2014. From this point onwards, the father accepted that the children were habitually resident in France.

In the summer of 2015, the parties agreed that the father would take the children to England for a holiday. It was agreed that he would collect them on 26 June 2015 and return them five weeks later on 30 July 2015.

Correspondence was exchanged between the parties both immediately prior to the children's departure and for a few days after their arrival in England. The parties argued both about whether the father could look after the children for an additional two days (he said that he could not) and about maintenance.

On 1 July 2015, during the course of these email exchanges, the father said to the mother:

"If you're not happy with the maintenance you get I can take custody back…"

The mother replied saying:

"OK take custody".

After a further argument about whether an application to the French court was necessary and, if so, who should make it, there was three weeks of email silence.

On 23 July 2015, the mother emailed the father asking him to confirm that he would be dropping off the children on the 30 July 2015 (as per the original agreement). The father responded stating that in response to the "OK take custody" email, he would not be returning the children. He had enrolled them at an English school, registered them with the UK authorities and informed the French court of the same. The mother objected vehemently to the father's position in a number of further emails.

On 30 July 2015, the father did not return the children. Shortly thereafter, the mother issued proceedings under the Hague Convention for the summary return of the children to France.

The mother's position was that the "OK take custody" email was a "slip of full thought" sent "in anger". It did not amount to her consenting to the children remaining in England. The father's case was that the same email evidenced the mother's genuine and unequivocal consent to the children remaining permanently in England with him.

Mr Justice Baker began his substantive judgment by setting out Articles 12 and 13 of the Hague Convention on Child Abduction. Article 13 provides that a contracting state is not bound to order the return of a child under Article 12 if the person with care at the time of the removal/retention "consented or subsequently acquiesced" to the said removal/retention.

His Lordship then proceeded to set out the nine principles to be applied when the court is considering the defence of consent from the leading case on the issue: Re PJ (Children)(Abduction: Habitual Residence)(Consent) [2009] EWCA Civ 588. The decision, whilst made in the context of a wrongful removal, applied with equal force to cases of wrongful retention.

The first of these principles is that consent to removal/retention must be "clear and unequivocal". On this basis alone, Baker J considered that the father's case must fail. The "OK take custody" email was sent within the course of a heated email exchange in which the mother was becoming increasingly frustrated and angry about matters of both contact and money. It did not therefore amount to her giving "clear and unequivocal consent" to the children being retained in England.

Baker J considered that this conclusion was strengthened by reference to principle five of Re PJ which requires the validity of any consent to be judged against the "realities of…the disintegration of family life". His Lordship also considered the mother's reference to "abduction" in the same email chain (shortly after the "OK take custody" phrase was used) to be telling.

In the alternative, Baker J considered that even if he was wrong about the above and "clear and unequivocal consent" had been given, any such consent had clearly been withdrawn prior to the retention of the children.

On this basis, his lordship ordered the summary return of the children to France the following day.

For the judgment and summary by Ben Wooldridge of 1 Hare Court (from which this news item is derived), please click here.