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IK (A Child), Re (Hague Convention: Evidence Consent) [2022] EWHC 396 (Fam)

A Judgment from Mr Justice Peel on Hague Convention return orders, the defences of consent and acquiescence and the law on habitual residence.

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M's application sought 7yo Z's return to Russia. Z was born in Russia where his parents lived. The parties separated around 1 year later and Z remained in the primary care of M in Russia but maintained contact with F. In 2019, F relocated to England and has lived in London ever since.

On 24 July 2021, F brought Z from Russia to London, M says this agreement was for a 2-month trip, F says it was for 3 years.

F defended the 1980 Hague Convention application on the basis of consent and/or acquiescence pursuant to Article 13(a). The burden of proving this defence lies on F.

A further issue to be decided was whether Z was habitually resident in Russia at the time of the alleged wrongful retention. The burden of establishing habitual residence in Russia lies on M.

The judge bore in mind the dicta of Mostyn J in FE v YE [2017] EWHC 2165 (Fam), [2018] 2 WLR 200, para 14: "the nature of the relief which is granted under the 1980 Convention is essentially of an interim, procedural nature. It does no more than to return the child to the home country for the courts of that country to determine his or her long-term future. […] 15. It is for this reason that the procedure for a claim under the 1980 Convention is summary. Oral evidence is very much the exception rather than the rule. The available defences must be judged strictly in the context of the objective of the limited relief that is sought. Controversial issues of fact need not be decided."

Mr Justice Peel was 'appalled' at the sheer weight of documentation for what are supposed to be summary proceedings- including 10 narrative statements and numerous exhibits. There was also a Cafcass report on Z's wishes and feelings despite child objections forming no part of F's defence. The judge commented this was becoming more common in Hague Convention cases as was an increasing reliance on oral evidence and suggested updated practice guidance.

The judge heard from 3 witnesses 'somewhat against my better judgment' agreeing with Mostyn J in ES v LS [2021] EWHC 2758 (Fam) that ordinarily no oral evidence should be given and stated he was confident that had he confined himself to the written evidence, documentation and oral submissions, he would have reached the same conclusion.

Much of the evidence presented by each party consisted of their views as to the respective welfare arrangements in Russia or England, and the parenting capacity of each parent. The judge found his determination was only to be based on the applicable principles of the Hague Convention and welfare matters were for another day.

Consent-The Law

The Article 13(a) defence of consent can be summarised as follows:

1. The removing parent must prove to the civil standard that the remaining parent clearly and unequivocally consented to the removal

2. Consent must be viewed in the context of common-sense realities of family life and not in the context of the law of contract

3. Consent does not have to be in writing- it may be manifested by words and/or inferred from conduct

4. A person may consent with the gravest reservations, that does not render the consent invalid

5. Consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties

6. Consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid

7. Consent must be given before removal and must be operative at the time of removal

8. Consent can be withdrawn at any time before the actual removal

9. The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent otherwise it cannot be effective.

If the defence is established, and the gateway to a return order opened, then the discretionary exercise is engaged with the case law stating that it will be an unusual case in which consent having been established, it is nonetheless appropriate to order a return. There are however, cases where a return has been ordered and consent is not a bar to an order for summary return.

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.

Acquiescence- The Law

In Re H [1998] 1 AC 72 per Lord Browne at 90E-G looks at the actual state of mind of the wronged parent which is a question of fact for the trial judge. There is one exception- where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or will not assert his right to a summary return, justice requires that the wronged parent be held to have acquiesced.

If acquiescence is proved, the same discretionary exercise as in cases of consent applies.

Habitual Residence- The Law

The judge deferred to the summary of law in the relatively recent case of Re M (children) (habitual residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105. That habitual resident corresponds to the place which reflects some degree of integration by the child in a social and family environment including: duration, nationality, school, language, family and social relationships, stability, as well as all specific circumstances of that child's case. It does not have to be permanent.

In this case, Mr Justice Peel found that M had not consented to Z's removal and F had instead persuaded himself that M agreed to relocation.  In fact M had consented to a visit to London during the Summer holidays before returning to Russia.

In a similar vein, M did not subsequently change her mind and agree to F retaining Z in London, nor did she act in such a way as to lead him to so believe.

Therefore, Z arrived in England on 24.07.21 and was wrongfully retained by 31.08.21- a period of around 5 weeks. Mr Justice Peel found Z was clearly habitually resident in Russia at the date of wrongful retention- he is a Russian national who had never travelled to the UK before, M was his primary carer, he had a school place in Russia, his wider family and friends are in Russia. The trip to England was for a temporary visit.

It follows that the Article 3 requirements are established and the Article 13(a) defences fail. Z is to return to Russia and it will be for that jurisdiction to determine welfare arrangements, including contact arrangements and any application by F for Z to live with him in England.

Case summary by Harriet Dudbridge, Barrister, St John's Chambers

For full case, please see BAILII