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(Court of Appeal; Ward and Wilson LJJ; 23 June 2009)
The Welsh mother and the Spanish father married in Spain and had five children together. After the family had lived in Spain for 12 years, the mother and children moved to Wales for 14 months, with the father's consent, while a new family home was constructed in Spain, with the aim of improving the children's English. During their stay in Wales, the children and mother stayed with the maternal grandparents. Although the arrangement had been that after the children had spent one academic year in Wales, the family would be reunited in Spain, during the stay in Wales the mother decided that she did not want to return to Spain, and instead wanted a divorce. However, after the father assured the mother that if things did not work out he would personally accompany them back to Wales to live and resume their schooling there, the mother agreed to return to Spain as originally planned. The mother and children moved back to Spain, and the children started attending Spanish schools again. However, within 3 months, the mother returned to Wales with the children. The father brought proceedings in Spain, and sought the children's summary return under the Hague Convention. The mother argued that the children were habitually resident in England and Wales, and also that the father had given advance consent to the return to Wales. At first instance the President took the view that the children had at no stage ceased to be habitually resident in Spain, so that when they returned to Spain after spending a year in Wales, they had merely been physically returning to the place of their habitual residence after a temporary absence for educational purposes. He concluded that the court therefore did not have to consider what the effect of the parents' discussions as to the future of the marriage if the difficulties persisted after a return to Spain, or whether the time spent in Spain after the return had re-established habitual residence in Spain. The mother appealed.
The President had not been saying that a visit for a temporary purpose could never establish habitual residence, but rather that on these facts the position in Wales had lacked the requisite element of being part of the 'regular order of life whether of short or of long duration'. Spain was where the family ordinarily lived; their sojourn in Wales had been extraordinary, and the mother's unilateral change of mind could not alter that. While clear and unequivocal consent could be given for removal at some future but unspecified time or upon the happening of some future event, such advance consent must still be operative and in force at the time of the actual removal. Further, the happening of the future event must be reasonably capable of ascertainment: fulfilment of the condition must not depend on the subjective determination of one party, for example, Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child", but must be objectively verifiable. Such consent must 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, not in the context of or governed by the law of contract, and could be withdrawn at any time before actual removal. If it was, withdrawn, the proper course was for any dispute about removal to be resolved by the courts of the country of habitual residence. The ultimate question was simply had the other parent clearly and unequivocally consented. Wilson LJ suggested that the most obvious, albeit not always decisive, indication of whether in reality an advance consent subsisted at the time of removal was whether the removal was clandestine; if it had been clandestine, as in this case, that would usually be indicative of the absence in reality of consent."
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