In the recent case of D (Children: Abduction) , a mother made a successful application under the Hague Convention on Child Abduction and Brussels IIR for the return of three children to France from England. 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 in August 2014 the mother returned to France with the children by agreement. The father accepted that the children were habitually resident in France. The parties agreed that the father would take the children to England for a 5 week holiday in the summer of 2015. During that holiday, the parties had various arguments by email which resulted in the father saying 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". The father then refused to return the children to their mother in France and argued that the words used by the mother were her consent to him keeping the children with him in England. The mother issued court proceedings under the Hague Convention for the summary return of the children to France. Mr Justice Baker considered consent and the principles from the leading case of Re PJ (Children)(Abduction: Habitual Residence)(Consent) .
The mother’s consent must have been "clear and unequivocal" and valid in the realities of their current family life. As the email from the mother was sent in a heated email exchange, Mr Justice Baker found this did not amount to her giving "clear and unequivocal consent" to the children being retained in England and he ordered the summary return of the children to France the following day.
This case is a useful recap of the principles of consent in child abduction cases (unlawful removal or retention) and also a reminder to parents to be careful when discussing family matters during heated email exchanges as these comments could be relied on in court.