Buscador de jurisprudencia

These proceedings concern two children, I (aged 6) and P (aged 3). Both children and their parents are Romanian. The parents married in 2013 and divorced in February 2019. In 2018, the mother and children settled in England, while the father frequently visited from Romania. 

On 14 March 2019, the mother and father entered into a notarised agreement by which she was permitted to travel out of Romania with the children, without the father, for three years. There was a further notarised agreement, dated 15 April 2019, that the mother would live in Romania with the children, although in practice, they continued living in England. 

In September 2019, the children went to Romania to stay with their father as the parents explored the possibility of reconciliation. In February 2020, the parents agreed that the children should return to England with the mother; the father provided the travel documents and permitted this on 6 February 2020. However, on the same day, the father revoked his March 2019 consent, unbeknownst to the mother. 

The mother initiated Romanian legal proceedings on 16 March 2020, seeking a declaration that she could travel with the children without the father's permission. On 17 July 2020, the father filed 1980 Convention proceedings in England, seeking a return order. The mother opposed, arguing that the children were habitually resident in England, the father had consented, and I objected to return. 

Following a hearing in England on 3 and 4 November 2020, the judge determined on 13 November that the children were habitually resident in Romania. The judge found the father had consented to the return to England, however, exercised his discretion to order a return by 30 November. This decision was largely made because the judge regarded Romania as the appropriate jurisdiction to resolve the children's welfare issues, given the ongoing proceedings there.

The appellate court dismissed the first ground, agreeing that the children were habitually resident in Romania. The second ground was allowed; the father had consented to the removal and the judge was wrong to exercise his discretion in the alternative.

Habitual Residence - Art. 3

Habitual residence is determined on the actual situation, rather than on a connection with a jurisdiction. The court rejected this ground of appeal, finding the children to be habitually resident in Romania at the time of removal. 

Consent - Art. 13(1)(a)

The appellate court summarised the authorities on consent :

1. Removing parent must prove consent to the civil standard. 
2. Consent should be viewed in the common-sense realities of family life and breakdown, not in the context of the law of contract. 
3. Consent must be clear and unequivocal but need not be written. 
4. Reservations as to consent do not render that consent invalid. 
5. Consent must pertain to circumstances that are broadly within contemplation of both parties. 
6. Consent that would not have been given but for some material deception / misrepresentation is not valid. 
7. Consent must be given before removal. 
8. Consent can be withdrawn at any time before the actual removal. 
9. Giving or withdrawing of consent by a remaining parent must be made known by words and/or conduct to the removing parent. 

Notably, point (9) was formulated in this appeal. The court based this on a textual analysis of the Convention, averring that for consent to be meaningful, it must be known by another party.

If consent is found, the judge retains discretion as to whether to order a return. Factors which will be considered include: 'desirability of a swift restorative return… the benefits of decisions about children being made in their home country; comity between member states; deterrence of abduction… reasons why the court has a discretion… and considerations relating to the child's welfare'.

The first instance judge in this matter attached great significance to 'Convention considerations' (e.g. habitual residence immediately before removal). The appellate court held this was an error of approach. On the facts, the child-welfare considerations outweighed the Convention considerations. The appellate court therefore took the unusual step of interfering with judicial discretion and allowed the mother's appeal.

Author: Daisy Holland (Judicial Assistant)