Case Law Search

The classification of consent has given rise to difficulty. Some courts have indeed considered that the issue of consent goes to the wrongfulness of the removal or retention and should therefore be considered within Article 3, see:

Australia
In the Marriage of Regino and Regino v. The Director-General, Department of Families Services and Aboriginal and Islander Affairs Central Authority (1995) FLC 92-587 [INCADAT cite: HC/E/AU 312];

France
CA Rouen, 9 mars 2006, N°05/04340, [INCADAT cite : HC/E/FR 897];

United Kingdom - England & Wales
Re O. (Abduction: Consent and Acquiescence) [1997] 1 FLR 924 [INCADAT cite: HC/E/UKe 54];

Re P.-J. (Children) [2009] EWCA Civ 588, [INCADAT cite: HC/E/UKe 1014].

Although the issue had ostensibly been settled in English case law, that consent was to be considered under Art 13(1) a), neither member of the two judge panel of the Court of Appeal appeared entirely convinced of this position. 

Reference can equally be made to examples where trial courts have not considered the Art 3 - Art 13(1) a) distinction, but where consent, in terms of initially going along with a move, has been treated as relevant to wrongfulness, see:

Canada
F.C. c. P.A., Droit de la famille - 08728, Cour supérieure de Chicoutimi, 28 mars 2008, N°150-04-004667-072, [INCADAT cite: HC/E/CA 969];

Switzerland
U/EU970069, Bezirksgericht Zürich (Zurich District Court), [INCADAT cite: HC/E/CH 425];

United Kingdom - Scotland
Murphy v. Murphy 1994 GWD 32-1893 [INCADAT cite: HC/E/UKs 186].

The case was not considered in terms of the Art 3 - Art 13(1) a) distinction, but given that the father initially went along with the relocation it was held that there would be neither a wrongful removal or retention.

The majority view is now though that consent should be considered in relation to Article 13(1) a), see:

Australia
Director-General, Department of Child Safety v. Stratford [2005] Fam CA 1115, [INCADAT cite: HC/E/UKe 830];

United Kingdom - England & Wales
Re C. (Abduction: Consent) [1996] 1 FLR 414, [INCADAT cite: HC/E/UKe 53];

T. v. T. (Abduction: Consent) [1999] 2 FLR 912;

Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24, [INCADAT cite: HC/E/UKe 267];

Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591];

Ireland
B.B. v. J.B. [1998] 1 ILRM 136; sub nom B. v. B. (Child Abduction) [1998] 1 IR 299, [INCADAT cite: HC/E/IE 287];

United Kingdom - Scotland
T. v. T. 2004 S.C. 323, [INCADAT cite: HC/E/UKs 997];

For a discussion of the issues involved see Beaumont & McEleavy, The Hague Convention on International Child Abduction, OUP, 1999 at p. 132 et seq.

There is authority that consent might validly be given to a future removal, see:

Canada
Decision of 4 September 1998 [1998] R.D.F. 701, [INCADAT cite: HC/E/CA 333].

United Kingdom - England & Wales
Re L. (Abduction: Future Consent) [2007] EWHC 2181 (Fam), [2008] 1 FLR 915; [INCADAT cite: HC/E/UKs 993].

It was held that the happening of the event must be reasonably ascertainable and there must not have been a material change in the circumstances since the consent was given.

United Kingdom - Scotland
Zenel v. Haddow 1993 SC 612, [INCADAT cite: HC/E/UKs 76].

For a criticism of the majority view in Zenel v. Haddow, see:

Case commentary 1993 SCLR 872 at 884, 885;

G. Maher, Consent to Wrongful Child Abduction under the Hague Convention, 1993 SLT 281;

P. Beaumont and P. McEleavy, The Hague Convention on International Child Abduction, OUP, Oxford, 1999 at pp. 129, 130.

Preparation of INCADAT commentary in progress.