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ABDUCTION: M v M [2007] EWHC 1404 (Fam)

Date:18 JUN 2007

(Family Division; Sumner J; 14 June 2007)

The parents moved to Greece when the children were quite young. The couple's relationship deteriorated and the mother informed the father that she wanted a divorce and would return to England with the children. With the father's agreement the mother moved to England and searched for English schools. The school she identified had only one place available, so the mother and the children returned to Greece for a brief period. When two places became available, the mother and the children returned to England. The father telephoned frequently but made no request for their return. The mother instructed solicitors to issue a petition for divorce, in addition to a claim for ancillary relief. The father then attempted to persuade the mother to return; when she refused he applied for the summary return of the children under the Hague Convention. The mother claimed that the father had consented to the removal of the children from Greece. The father claimed that it had always been intended that he would join the mother and children in England, or in the alternative that he had rescinded the consent originally given.

The mother had proved that the father had consented to the removal to England; there was evidence of clear and cogent consent and there had been no effective rescission of that consent. The father's change of mind resulted from the father realising the potential financial consequences of an English divorce; this was not a change of mind that in some way altered the original consent. The court was reluctant to find that discussion after separation in Convention cases, with a view to possible reconciliation, could thereafter be held against either party. Exercising the court's discretion to return the children in a case in which one party had clearly consented to removal would amount to the consenting party being given the option to change their mind after the other party had acted in reliance on the consent. It might be appropriate to order summary return in certain cases, but not in the instant case.