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G (Abduction Consent discretion) [2021] EWCA Civ 139 (09 February 2021)

The case concerned an appeal against a return order made under the 1980 Hague Convention. The appeal mainly centred on the judge’s exercise of his discretion to make a return order, although the father challenged the findings made on the issue of consent.


The trial judge had found that the father had consented to the mother bringing the children to England from Romania, but nevertheless exercised his discretion to make a return order. His decision on habitual residence was upheld, as were his findings on consent.

The Court usefully summed up the principles to be applied when consent is raised [25]. The Court then added the principle that:

"The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent. A consent or withdrawal of consent of which a removing parent is unaware cannot be effective."

This was particularly crucial in this case, where the father had appeared to consent through his words and actions, but took steps indicating a change of mind prior to the removal. He did not inform the mother of any alleged revocation of his consent, or the steps taken. The Court justified this principle on the basis of the natural reading of the word 'permission', but more so on the practicalities and the arbitrary consequences that would arise if one parent could decide it wanted to revoke consent but not notify the other, removing parent. The father's challenge to the findings on consent was therefore not successful in preventing the appeal's success.

The Court then moved to conduct a review of the case law on discretion, particularly in consent cases. The position was summarised as follows:

"42.To sum up, the exercise of the discretion under the Convention is acutely case-specific within a framework of policy and welfare considerations. In reaching a decision, the court will consider the weight to be attached to all relevant factors, including: the desirability of a swift restorative return of abducted children; the benefits of decisions about children being made in their home country; comity between member states; deterrence of abduction generally; the reasons why the court has a discretion in the individual case; and considerations relating to the child's welfare.

43.In a consent case, the better view is that the weight to be given to the policy considerations of counteracting wrongful removal and deterring abduction may be relatively slight, while the weight to be attached to home-based decision-making and comity will depend critically on the facts of the case and the view that the court takes of the effect of a summary return on the child's welfare."

The Court found that, in the present case, the judge had made an error in his approach by attaching significant weight to 'Convention considerations' pointing towards return such as comity, home-based decision-making, respect for judicial processes, and the swift return of abducted children, to the extent that he then looked to see whether pressing compelling welfare considerations overrode them. The Court found that the trial judge had given "predominant" weight to policy considerations without explaining why he had done so in this particular case. The Court addressed the considerations either way, and found that this was a case where the child-centred welfare considerations greatly outweighed the policy considerations, and therefore it interfered with the judge's exercise of his discretion and allowed the mother's appeal.

Case Summary by Rebecca Davies, Barrister, Field Court Chambers

For full case, please see BAILII