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 . 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.
Read the full summary on Family Law Week.