Child Abduction & the Hague Convention

What happens when there is a dispute as to whether consent was given for the removal of children from a particular country?

In a recent decision handed down by the Family Court of Australia on 23 November 2017, the Court was asked to determine an application by the father of two children for the return of the two children to the United Kingdom from Australia.  The mother, in whose care the children were at the time of the application, in Australia, claimed the father consented to her and the children relocating to Australia.  At the time the Orders were made in November 2017, the children were 11 and 8 years of age respectively.  In seeking to convince the Court that the father had consented to the children relocating to Australia, the mother relied on three separate matters. 

  • Firstly, she relied on the conversations between the father and mother in relation to relocating to Australia as a family. 
  • Secondly, she relied on the events immediately before and at the time she left the United Kingdom with the children. 
  • Thirdly, she relied on the contents of various texts and email messages which she said evidenced the father’s consent. 

Ultimately, those matters were not enough.  In support of this case, the father pointed to the fact he gave the children’s passports to a third party to prevent the mother removing the children and the mother in fact had not demonstrated that the father was aware that the passports had been returned to her.  The Court stated (citing a previous case decided in 1997) that consent must be real.  It must be positive and it must be unequivocal.  There will be only limited circumstances in which the Court can be satisfied that such consent has been given even though it has not been given in writing. 

It stands to reason however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument.  There may also be circumstances in which it can be inferred from conduct that consent has been given.  Interestingly, the Court then went on to discuss the difference between consent and acquiescence .  It was held that mere acquiescence in the removal of a child would not support an order refusing to return a child, whereas consent would be a proper defence to an application for the return of children.

The clear message in this recent case and previous cases on a similar point are that if someone is contemplating relocating interstate or overseas with children of the marriage or relationship some form of written consent from the non-relocating parent is strongly advisable.

Ben Farmer

25 January 2018