A six year old boy, had lived in Western Australia all his life. Shortly prior to his removal from Australia, the mother had left Australia to live in Wales. The maternal grandmother asked the father for permission to take the child to Wales to visit the mother. The father said he would not allow the child to leave Australia for longer than 6 months, and he insisted that legal arrangements be put in place for the child’s return. Accordingly, the father, maternal grandmother and the mother entered into ‘minutes of consent order’ whereby the parents would have joint guardianship, the father sole custody, and the grandmother would return the child to Western Australia by a particular date. However, the minutes of consent were not able to be registered and were therefore not legally enforceable in Western Australia. The father was persuaded by the mother’s assurances, and the grandmother’s provision of a bond, that they were sincere in their undertaking to return the child to Australia. The mother later admitted in evidence that she signed the agreement without any intention of cooperating with its terms. The trial judge found that the consent was obtained by deceit. The mother appealed.
Held: A consent to a child’s removal from a country which had been obtained by deceit was not to be relied upon readily. An order for the return of a child to its home country could be made without a formal order having been made in that country. A claim of duress failed.
Waite LJ said: ‘The central issue.
Her counsel, Mr Munby, has not sought to suggest that the mother’s conduct, or that of the maternal grandmother, can be defended on any equitable or moral ground. The judge’s finding that: ‘the mother, assisted by her own mother, cruelly deceived the father; and she now seeks to profit by her deceit’, is not challenged. The crucial issues are:
. (2) does the fact that the father’s consent to that removal was obtained by deception require him to be treated as though he had never consented at all, so as to render the removal a breach of his ‘rights of custody’?
. . Mr Munby contends that the father’s consent to F’s removal on 25 August 1993 was a genuine consent, however fraudulently obtained by the mother and maternal grandmother. The deceit may be reprehensible, but the fact that consent can (sic) given makes it impossible to say that the removal was wrongful in the sense of involving a breach of the father’s rights of custody. Mr Holman submits that the judge was right to hold that a consent obtained by deceit is no consent . .
. . As for the issue of consent, the question whether a purported consent to the child’s removal obtained from the aggrieved parent was or was not a valid consent is similarly to be determined according to the circumstances of each case. The only starting-point that can be stated with reasonable certainty is that the courts of the requested State are unlikely to regard as valid a consent that has been obtained through a calculated and deliberate fraud on the part of the absconding parent. That applies in my judgment whatever the purpose for which the consent is relied on — whether it be to nullify what would otherwise be considered a wrongful breach of rights of custody for the purposes of Art 3, or as a consent of the kind that is expressly referred to in Art. 13(a).’
Here again, the judge in my view reached a conclusion that is unassailable. The father’s consent to F’s removal last August was indeed obtained through a cruel deceit. It was cruel, moreover, not only to the father but to the child. F is only 6, but he is old enough to understand the assurance given to him when he left Australia that he would be returned after an interval to the only country he had ever known and the only parent who had given him continuous and consistent care; and vulnerable enough to suffer if that expectation is destroyed. The judge was right to hold that a consent so obtained was no true consent at all.’
Judges:
Waite LJ
Citations:
Gazette 15-Jun-1994, Times 12-May-1994, Ind Summary 09-May-1994, [1994] 2 FLR 294
Statutes:
Child Abduction and Custody Act 1985
Jurisdiction:
England and Wales
Cited by:
Cited – X v Latvia ECHR 26-Nov-2013
ECHR Grand Chamber – Article 8-1
Respect for family life
Failure to conduct detailed examination of all relevant points when deciding whether to return a child pursuant to Hague Convention: violation . .
Cited – VK and AK v CC CANI 19-Feb-2014
The child had been removed to NI by his mother. She had left him as a baby with her parents in Latvia, and they had cared for him under an informal arrangement for several years. M had taken the boy from the street in Latvia. The grandparents sought . .
Cited – In re K (A Child) SC 15-Mar-2014
Rights of Custody under Convention
The Court was asked as to what were ‘rights of custody’ within the Convention. M had at first left her child with the maternal grandmother in an informal but long term arrangement in Latvia when M moved to Northern Ireland. Later M removed the child . .
Cited – KK (A Child), Re Judicial Review FDNI 10-Jun-2013
Maternal Grandparents sought a declartion requiring the return to Latvia of their grandson, who had been brought forcibly to NI by his mother, he having lived with them in Latvia for several years. . .
Lists of cited by and citing cases may be incomplete.
Children, International
Updated: 28 April 2022; Ref: scu.81714