An application was made under the 1985 Act. The mother answered by saying that the removal of the child had been approved by the father.
Held: The mother’s appeal failed. The father had clearly indicated that he withdrew his consent before the mother left Spain. The time which mattered was the state of consent at the time of the removal. The court set out applicable principles for testing whether there was consent: ‘(i) consent to removal of a child had to be clear and unequivocal;
(ii) consent could be given to the removal at some future but unspecified time or upon the happening of some future event;
(iii) such advance consent had, however, still to be operative and in force at the time of the actual removal;
(iv) the happening of the future event had to be reasonably capable of ascertainment, and in particular had not to depend on the subjective determination of one party;
(v) consent, or the lack thereof, had to be viewed in the context of the realities of family life, or more precisely in the context of the realities of the disintegration of family life;
(vi) consequently, consent could be withdrawn at any time before actual removal, and, if it was so withdrawn, the proper course was for any dispute about removal to be resolved by the courts of the country of habitual residence before the child was removed;
(vii) the burden of proving the consent rested on the person asserting it;
(viii) the inquiry was inevitably fact-specific;
(ix) the ultimate question was a simple one, whether the other parent had clearly and unequivocally consented to the removal.’
Judges:
Ward, Wilson LJJ
Citations:
[2009] EWCA Civ 588, [2009] Fam Law 786, [2009] 2 FLR 1051, [2010] 1 FCR 32
Links:
Statutes:
Child Abduction and Custody Act 1985
Jurisdiction:
England and Wales
Citing:
Appeal from – In re P-J (Children) (Abduction: Consent) FD 2009
. .
Cited by:
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 28 July 2022; Ref: scu.347199