The operation of the discretionary defence of consent under Article 13 (a) of the Hague Convention 1980 – an analysis of the relevant case law, dealing specifically with future consent and tacit consent.
Jennie Read, Solicitor, Hartnell Chanot & Partners Ltd.
The leading authority on the issue of consent remains the Court of Appeal case, Re P-J (Abduction: Habitual Residence: Consent)  EWCA Civ 588;  2 FLR 1051. At first instance, the President ordered the summary return of the five children to Spain, despite the mother having raised various defences to the Hague application including challenging habitual residence pursuant to Article 3 of the Convention, but also under article 13(a) claiming the father had given his prior or future consent to the removal. The mother relied upon the father's consent to the children's removal from Spain for one academic year for educational purposes. The mother returned to Spain with the children at the end of the academic year on the father's assurance that he would accompany them back to Wales if she was not happy in Spain. The mother appealed the first instance decision but her appeal was dismissed by the Court of Appeal. The issues considered on appeal were (1) whether there was an advance or prior consent for the removal on the happening of a future event; and (2) whether such consent could be withdrawn subsequently, having account of the circumstances which could be relied on by the abductor.
Pre-order the 2017 edition today