Child Abduction and Consent under The Hague Convention

In a recent case in the family courts (Person D v Person E [2024] EWHC 2626 (Fam)) it was determined that when a child is removed from a jurisdiction by one parent with the other’s consent, proceedings under the Hague Convention will likely fail. 

The question in this case was whether the father had in fact consented to the mother removing the children to the UK from the US.

The parties had five children. The youngest born was in March 2023 and they separated around that time. The children’s habitual residence was America. The mother brought the children to England in June 2023 and the father issued proceedings under the Hague Convention for the Civil Aspects of International Child Abduction. He rejected the mother’s claims that he had consented.

It was common ground that the correct approach to the issue of consent is set out in G (Abduction: Consent/Discretion) [2021] EWCA Civ 139.in particular:

• it was for the mother to prove her assertion that the father had consented;
• the primary focus is likely to be on the words and actions of the remaining parent (father, in this case);
• consent must be clear and unequivocal; and
• consent must be valid and remain operative at the time of removal (consent can be withdrawn at any time before the actual removal).

The mother relied on several matters. For instance, her past conduct had always been that if they separated, she would return home to England with the five children. That is what she has always done – around ten times through the years.

She said once they separated she had nowhere else to go, and it would have been obvious to him that if she was to leave the matrimonial home, she would want to come to England with the children. Furthermore, the father asked her to leave and had even obtained a passport for the baby when he was only a month old. (On this point, the judge Sir Andrew McFarlane observed that the mother wanted the passport in order to be free to travel to England with the baby; that was her intention at that time and he must have realised that). 

Further evidence revealed that the topic of leaving the country was being discussed.

However, the mother had bought the flight tickets just 24 hours before travelling and had apparently not told the father of her intentions. There was also a local police report following the mother’s flight when the father found that they were missing. If, said the judge, the father agreed with the mother leaving for England, it was difficult to understand how he would, 24 hours later, be round at the police station getting them to try to find out whether she had gone, and if so, where and when.

The President of the court made an ‘inescapable finding’ – that the mother left the US surreptitiously without telling the father. Why, for example, would he go to the local police and then the local court to obtain orders for the children’s return if he was consenting? It was the first time the father had involved the police and the court. The mother had not proved on balance that the father had consented.

As with all matters involving divorce and children it is usually wise to seek specialist legal advice before taking any action.

At Alexander JLO we have decades of experience of dealing with all aspects of family law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000 or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 14th  March 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here