G (Abduction: Consent/discretion): Judge wrong to exercise discretion to order return of children

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An appeal by the mother from an order that her two children (I, aged 6, and P, aged 3) should be summarily returned to Romania.

As Lord Justice Peter Jackson, giving the leading judgment of the Court of Appeal in G (Abduction: Consent/discretion) explained:

"An unusual feature of the case is that, although the Judge found that the father had consented to the mother bringing the children to England in February 2020, he nevertheless exercised his discretion to make a return order."

The mother appealed primarily from that exercise of discretion. The father, meanwhile, challenged the Judge's conclusion on the issue of consent.

The background, also explained by Jackson LJ:

"The parents and children are Romanian citizens. The parents married in 2013 and their first child I was born in 2014. In 2015, the family relocated to England for five months but returned to Romania. In 2017, P was born there and in March 2018 the family again moved to England, where the mother worked as a nurse. In October 2018, the father returned to Romania alone and the mother and children remained here for the next year, with the father visiting from time to time."

Divorce proceedings then took place in Romania. Without going into details, it was agreed that the children would continue to live with their mother in England.

Between September 2019 and February 2020 the children were in Romania, as the parents considered reconciliation. This was not successful and the parents agreed that it would be better overall for the children to return to live with the mother in England.

The mother brought the children back to England on the 6th February. Unbeknownst to her, on the 5th of February the father had executed a document revoking his agreement to her travelling with the children. However, the mother only learned about this five days after returning to England.

The father applied for a summary return order. As indicated, the Judge found that the father had consented to the mother bringing the children to England, but nevertheless exercised his discretion to make a return order, having found that the children were wrongfully removed.

The mother appealed, on three grounds, asserting that the Judge was wrong (A) in his assessment of habitual residence (i.e. that on the day of their departure the children were habitually resident in Romania), (B) in relation to the removal having been wrongful, and (C) in his exercise of discretion. Permission was granted on Grounds (A) and (C).

The father issued a Respondent's Notice, seeking to uphold the Judge's decision on the additional basis that the judge was wrong to find that the father had consented to the removal and had thereby wrongly invested himself with a discretion.

The Court of Appeal made the following findings.

On the issue of habitual residence the conclusion that the children were significantly integrated, and accordingly habitually resident, in Romania was one that was clearly open to the Judge. Accordingly, this ground of appeal was rejected.

On the issue of consent, unsurprisingly, the Judge's finding was upheld, as when she removed the children the mother had not been made aware of the fact that consent had been withdrawn.

That just left the issue of discretion. Jackson LJ reached the conclusion that the Court of Appeal should intervene, for the following reasons:

(1) The Judge approached the balancing exercise incorrectly.

(2) "He then gave significant, indeed predominant, weight to policy considerations [the swift return of abducted children, comity between the Contracting States] without explaining why he was doing so. He noted that the mother had been entitled to remove the children but he did not take into account that there was in consequence no reason for restorative or deterrent action. As to comity and home-based decision-making, he gave no weight to the fact that England is at least as much their "home country" as Romania – apart from the interrupted period of 20 weeks, these young children aged 6 and 3 had lived here for the last 2½ years. Nor did the Judge explain why it would be beneficial for the children to be in Romania while the Romanian court made its decisions."

(3) "In contrast, the Judge gave no identifiable weight to the reason for his being invested with a discretion, namely that the father had agreed to the removal, nor to the inherent unfairness of his then succeeding in summoning the mother and children back."

(4) "The only other positive reason for a return order was that the children could have contact with their father in the interim, but that had to be balanced against the other consequences of summary return and the fact that it had been the father's original decision to live in a different country to the children."

(5) "The welfare analysis did not address the negative impact of a summary return at all. The children appear to be settled [in England] in the colloquial sense and the fact that they have been backwards and forwards in the past is not a reason why that should continue ... All in all, an effective summary survey of the welfare issues in this case was not carried out; had it been, it would have pointed strongly towards maintaining the interim status quo."

Jackson LJ concluded:

"This is therefore a case where child-centred welfare considerations greatly outweigh policy considerations. The removal of the children was wrongful in name only, the children's current situation gives rise to no obvious concerns, and there is no advantage (and considerable disadvantage) in them being moved from where their father had agreed they should be in order for a decision to be taken about their future. The Judge's exercise of discretion cannot stand and I would remake the decision in favour of refusing an order for summary return.

"I nevertheless acknowledge the Judge's overall handling of this unusual case. His findings of fact and his conclusions about habitual residence and consent were solid ones. It is only in the exercise of discretion that he fell into error, but on that ground I would allow this appeal and set aside the order for return."

You can read the full judgment here.