Re C (Minors) (Abduction: Consent)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Court | Family Division |
HOLMAN, J
Child abduction – children born to American father and English mother – children habitually resident in Alaska – following breakdown of marriage mother removing children to England intending to settle here permanently – whether wrongful removal or retention of children by mother – whether father consented to removal.
In 1987 a United States Air Force serviceman ("the father") and an English woman ("the mother") married. Two children were born in 1987 and 1992 respectively and had dual American and English nationality.
In 1991 the father left the United States Air Force and enrolled as a student at the University of Alaska which led to the family living in Anchorage, Alaska.
In January 1995, following the breakdown of the marriage, the mother with the children came to England intending permanently to remain. The father applied under the Hague Convention for the summary return of the children to Alaska arguing that he had not consented to the mother's actions and that the mother had wrongfully removed or retained the children.
Held – dismissing the application: (1) The Hague Convention provided that the wrongful removal or retention of children existed where the removal or retention was in breach of a parent's rights of custody of the children; but it was difficult to characterize the removal or retention as wrongful or in breach of the rights of custody where a parent had consented. The onus was on the parent who opposed the return of the children to the children's State of habitual residence to prove that the removal or retention was by consent where there had been a removal from or retention away from the State of habitual residence; where that was in breach of the rights of custody; and where consent was in issue.
(2) Consent to removal or retention of children could be in writing or be inferred by conduct. Article 13 of the Hague Convention left open the issue of how consent was established and did not specifically provide that consent needed to be in writing or that a parent had to establish consent on the face of documentation or by means of an express statement. Article 13 of the Hague Convention was satisfied where there was clear evidence that a parent consented to the removal or retention of children taking into account all the circumstances, viewing the parents words and actions as a whole, and by considering the parent's state of knowledge of what was planned by the parent who removed or retained the children. The actions of the parents in talking about the mother returning to England with the children; the father standing by and allowing the mother to make plans over a number of months; the mother organizing and running a garage sale from which the
children's property was sold and the money raised was used to pay for travelling to England; the mother leaving work which resulted in a number of leaving parties; the mother packing suitcases and large boxes into which the children's belongings were placed; the sale of the family's second motor vehicle to pay for the shipping costs all militated towards the father having given consent to the mother removing the children from the children's State of habitual residence.
(3) Where consent had been proved it was necessary for the court to decide whether to exercise the court's discretion and order the children's return to Alaska. In the circumstances such an order was not appropriate as the mother had removed the children from Alaska in a planned and organized manner; the children had become settled in a home and the eldest child had become well settled in school; there was no home at all in Alaska; if returned, there was an uncertain future in Alaska for the children; there was no possibility of the parents reconciliating; the mother's family lived in England; the children had dual nationality; and it was not capricious or contrary to the children's cultural or other needs that the children made a permanent home in England.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), Articles 3(a), 12 and 13(a) and (b).
Case referred to in judgment:W (A Minor) (Abduction), Re[1996] 1 FCR 46.
Caroline Lister for the father.
Kate Branigan for the mother.
MR JUSTICE HOLMAN.This case concerns two children: a girl who was born on 10 November 1987 and is now therefore 7 years and 8 months old, and a boy who was born on 14 September 1992 and is now therefore 2 years and 10 months old. Their parents, who are now each aged about 30, were married in 1987. The father is American born and bred, and by nationality. The mother is English born and bred, and British by nationality. The children have dual American and British nationality.
At the time of their marriage the father was serving in the United States Air Force, but in 1991 he completed his active service and enrolled at the University of Alaska in Anchorage, Alaska, to read for a degree in natural sciences. He was due to graduate in, and did graduate in, May 1995.
The parties' home was a rented house in Martha's Vineyard, Anchorage, and here the children have until recently been brought up. The mother's own family live in England, and naturally from time to time the mother came on holidays here, bringing the children with her. During 1988 they were here twice for periods of 30 and 10 days. On those two occasions the father came too. In 1989 the mother came for a month with the girl, and the father joined them for two weeks. In 1991 the mother came for two months with the girl, and in the summer of 1993 she came for six weeks with both children.
Shortly after that holiday the girl started at Lake Lotis Elementary School in
Anchorage, where she remained until this January, and where she did well. Clearly she is a bright and able child, as befits her intelligent parents.
It is quite clear that the relationship between the parties has been a difficult one for some time. One only has to read a letter which the mother wrote to the father on 13 March 1995 and the anguished letters from the father to the mother in February and March 1995 to see that. There was an upset in about May 1992 which resulted in the father being charged with criminal proceedings, although the charge was later dropped. Whatever took place on that occasion, which is in dispute and irrelevant to anything I have to decide, it is obvious that the marriage was in some difficulty at the time.
The father admits that the following year, while the mother was in England, he had a brief affair. During 1994 there was undoubtedly a period of separation. The parties disagree how long it lasted, but I think that is at least in part because the father was coming and going. The mother regards him as having continued to live away, but spending periods at home. The father regards himself as having returned home, although continuing to spend periods away.
There is a document dated 25 May 1994 and signed by the father, to enable the mother to obtain day care assistance...
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