T v T (Abduction: Consent)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Year | 1999 |
| Date | 1999 |
| Court | Family Division |
Child abduction – Consent to removal – Mother removing child from Greece to England – Mother intending that child should make his home in England with her and submitting that father agreed – Father denying that claiming he had only agreed to child going to England for holiday – Father applying for order under Hague Convention for return of child to Greece – Whether father could be held to have given unequivocal consent to removal of child from Greece – Whether order should be made for immediate return of child to Greece.
The parents married in 1989. The mother was a Zambian national and the father was a Greek national. They had a child, a boy, who was born in 1990. The family lived in Zambia until November 1995 when the mother and the child went to live in Greece. The father joined them in January 1996. In December 1996 the mother came to England to take a course in teaching English. She did not enrol on the course but took a job. In February 1997 she began a sexual relationship with Mr G. In April 1997 she returned to Greece and early in May 1997 she returned to England with the child. The father sought an order under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) that the child be returned forthwith to Greece. At the hearing the mother contended that when she left Greece with the child on 2 May 1997 the father had consented that the child should make his home with the mother in England. The father denied that he had consented to that as he had only agreed to the child coming to England for a holiday. He also contended that he had been deceived by the mother in that she did not tell him of her relationship with Mr G and that she did not intend to return the child to Greece so that the child’s removal should be treated as if it was without his consent.
Held – Where the existence and extent of the consent of the non-removing parent fell to be considered, it had to be unequivocal. That was particularly so where the removing parent did not seek to rely on any express statement of consent by the other parent. In addition the consent had to be real in the sense that it was not based on a misunderstanding or non-disclosure, which would vitiate the consent for the purposes of the Hague Convention. In the present case, accepting the evidence of the father and rejecting that of the mother it followed that the father did not consent to the mother bringing the child to England, that by not telling the father of her relationship with Mr G she deceived him, and therefore there was no consent for the purposes of the convention. Accordingly, an order would be made that the child be returned forthwith to Greece.
Cases referred to in judgmentAkbarali v Brent London BC, Abdulla v Shropshire CC, Shabpar v Barnet London BC, Shah v Barnet London BC, Barnet London BC v Shah [1983] 2 AC 309, [1983] 1 All ER 226, [1983] 2 WLR 16, HL.
B (abduction: article 13 defence), Re [1997] 2 FLR 573.
C (minors) (abduction: consent), Re[1996] 3 FCR 222.
H (minors) (abduction: acquiescence), Re[1996] 3 FCR 425, CA; rvsd[1997] 2 FCR 257, [1997] 2 All ER 225, [1997] 2 WLR 563, HL.
H and R (child sexual abuse: standard of proof), Re[1996] 1 FCR 509; sub nom Re H (minors) (sexual abuse: standard of proof) [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, HL; affg[1995] 2 FCR 384, CA.
K (abduction: consent), Re[1998] 1 FCR 311.
KM (a minor) (habitual residence), Re[1996] 2 FCR 333, CA.
M (minors) (jurisdiction: habitual residence), Re[1997] 2 FCR 527, CA.
O (abduction: consent and acquiescence), Re[1998] 2 FCR 61.
P v P (abduction: consent or acquiescence) [1998] 3 FCR 550,CA.
W (a minor) (abduction), Re[1996] 1 FCR 46.
ApplicationThe father applied to the High Court for an order under Sch 1 to the Child Abduction and Custody Act 1985 that his son, H, be returned to Greece, the country of the child’s habitual residence, following the child’s removal to England by the mother who opposed the application on the ground that the father had consented to the child’s removal. The case was heard and judgment was given in chambers. The case is reported with the permission of Charles J. The facts are set out in the judgment.
David Bodey QC and Elizabeth Rylands (instructed by Bendles, Carlisle) for the father.
Gordon Murdoch QC and Karen Shuman (instructed by Harrison & Tordoff, Bradford) for the mother.
cur adv vult
20 July 1998. The following judgment was delivered.
CHARLES J.In this case the plaintiff (the father) seeks an order pursuant to the Child Abduction and Custody Act 1985 that his son, H, be returned forthwith to Greece.
Upon the undertakings agreed between the parties and given by the father I make an order as asked that H be returned to Greece.
A brief background historyThe defendant (the mother) is H’s mother. The mother has another child a girl (P) by a previous relationship who was born on 1 September 1984 and is therefore now 13.
The mother and the father met in Zambia in 1987, they began to live together there in 1988 and married in 1989. H was born on 11 January 1990 in Zambia. He is therefore now eight. The father is 34 and is a Greek national. The mother is 32 and is a Zambian national. H has dual Greek/Zambian nationality.
The mother’s parents live in Zambia. The mother has at least one sister living in the United Kingdom. The father’s parents live in Greece and the evidence before me shows that he has at least one brother and one sister living in Greece.
In 1990 and 1991 the mother and H visited Greece for short holidays. The father’s parents who only speak Greek also visited Zambia for holidays in later years.
The father, mother, P and H lived together as a family in Zambia. It was common ground before me that the marriage became strained and in 1995 the mother and the father separated for about four months, and that towards the end of 1995 the mother and father agreed to attempt a reconciliation.
In November 1995 when H was nearly six he and the mother went to Greece for a holiday and the plan was that the father would join them there over Christmas. This did not happen because the father was arrested in Zambia and spent some time in prison over the Christmas period.
In January 1996 the mother and the father met and spent about ten days together in England. The father was travelling from Zambia to Greece and the mother was travelling in the opposite direction having left H in Greece. After seeing H in Greece the father returned to Zambia in January 1996 leaving H in Greece where he was looked after by the father’s parents with the help of a sister of the father.
In April 1996 the mother and father left Zambia and travelled to Greece with a short stay en route of about five days in England. They left P in Zambia.
The mother and father arrived in Greece in early May 1996 and from then until December 1996 they lived in Greece with H as a family in the town where the father’s parents also lived. The father was involved in two businesses together with his brother; a coffee shop and a courier business.
In September 1996 the mother began working in a private English language school in Greece.
In December 1996 the mother went to England. The expressed purpose of this visit was for the mother to take a course in teaching English which would give her a qualification and help her to teach English in Greece. The mother agreed that this was the expressed purpose of her visit. However when she got to England she did not enrol on a course because she said that when she got here and saw what the course involved she decided that it was not for her. However she did not return to Greece; rather she remained living here with her sister, Mrs M, and took a job in England.
Over the Christmas and New Year holiday the mother met Mr G. They became close and began a sexual relationship in February 1997.
On 14 April 1997 the mother returned to Greece.
On 2 May 1997 the mother left Greece with H and returned with him to the United Kingdom.
The basis upon which the mother left Greece with H on 2 May 1997 is the central issue of fact in this case.
The mother is at present, and has been since about July 1997, living with Mr G together with H.
The father came to England on 21 July 1997 and left on 3 December 1997.
Where H has lived, been to school and his wishesAs appears from the earlier description of the movements of the family: (a) H lived in Zambia from his birth in January 1990 until November 1995 when he was nearly six, (b) H lived in Greece from November 1995 when he was nearly six until May 1997 when he was seven years four months, and (c) H has lived in England since May 1997.
H was at school in Greece and I have seen some complimentary reports about him from his school which indicate that he was doing well, was happy in Greece and has a good command of the language.
H has been at school in England since the end of the summer half-term of 1997 and although I have not seen any school reports from his English school I understand and accept that he has done, and is doing, well at school and is happy here.
At one stage, part of the mother’s case was that H had expressed a clear wish not to return to Greece and that his view should be given significant weight. As a result of this H was seen by a court welfare officer who reported in the following terms:
‘[H] has lived in Zambia, Greece and Yorkshire. We spoke about his school and general lifestyle in each place and he had positive recollections of all. I asked [H] where he was happiest. After some thought he said that Zambia was where he was happiest. He spoke of having had a nice home and school there. He said he missed his family there, especially his sister. I asked [H] to tell me about living in Yorkshire. He told me that he liked it. He said that he and his mother had recently moved to a different town which was better. However, this meant he had to transfer to another school. He liked his new school but said there were some children who teased him. [H]...
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