UNITED KINGDOM - SCOTLAND
Outer House, Court of Session
UNITED STATES OF AMERICA
UNITED KINGDOM - SCOTLAND
8 May 2003
Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b)
The mother submitted that the father had consented to the removal and in this relied upon a note he had written on 8 July 2008 which affirmed that he assigned all rights to the child to the mother and allowed her to relocate to the United Kingdom. The trial judge questioned whether consent should be interpreted in the same way as acquiescence, as this might lead to over-complications. He noted that a case for consent had to be clearly established.
The judge found that at the time the note was written there was consent on the part of the father. However, he held that consent, once given, was not irrevocable. In mid September, in a phone conversation between the parents, it was accepted by the Court that the father said something to the effect that the mother should go and support herself and the child.
The trial judge held that had the phone conversation been the only additional evidence he would have been inclined to regard this as a reaffirmation of the father's earlier consent. However, other evidence, including from testimony given by the mother showed that by mid-September the July consent was not on balance still in force. The exception was therefore not made out.
The trial judge accepted that in principle it would, prima facie, place the child in an intolerable situation were she to be returned in circumstances in which it was impossible or impracticable for the mother to return with her. In this arguments based on the financing of travel were rejected since public funds could be made available. Furthermore, special arrangements existed for granting temporary leave to enter the United States.
The primary issue related to the mother's ability to support herself and her daughter whilst in the United States. The mother would not be able to work there or receive benefits, whilst custody proceedings would not necessarily be concluded in weeks or a few months. Consequently, the Court accepted that the mother's financial circumstances represented a genuine obstacle to her returning.
However, this would be addressed if the father was willing and able to provide mother and child with suitable accommodation and to provide adequate maintenance during the pendency of the proceedings. Residence in a mobile home and $200 per week would suffice but the Court found on the evidence that the father could not be relied upon to make such provision for the duration of the proceedings.
In these circumstances, the Court exercised its discretion not to make a return order.
Article 13(1)(b) and Economic Factors
There are many examples, from a broad range of Contracting States, where courts have declined to uphold the Article 13(1)(b) exception where it has been argued that the taking parent (and hence the children) would be placed in a difficult financial situation were a return order to be made.
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]
The fact that the mother could not accompany the child to England for financial reasons or otherwise was no reason for non-compliance with the clear obligation that rests upon the Australian courts under the terms of the Convention.
Y.D. v. J.B.  R.D.F. 753 (Que. C.A.) [INCADAT Reference: HC/E/CA 369]
Financial weakness was not a valid reason for refusing to return a child. The Court stated: "The signatories to the Convention did not have in mind the protection of children of well-off parents only, leaving exposed and incapable of applying for the return of a wrongfully removed child the parent without wealth whose child was so abducted."
CA Lyon, 19 septembre 2011, No de RG 11/02919 [INCADAT Reference: HC/E/FR 1168]
The existence of more favourable living conditions in France could not be taken into consideration.
7 UF 39/99, Oberlandesgericht Bamberg [INCADAT Reference: HC/E/DE 821]
K.M.A. v. Secretary for Justice  NZFLR 891 [INCADAT Reference: HC/E/NZ 1118]
Financial hardship was not proven on the facts; moreover, the Court of Appeal considered it most unlikely that the Australian authorities would not provide some form of special financial and legal assistance, if required.
United Kingdom - England and Wales
In early case law, the Court of Appeal repeatedly rejected arguments that economic factors could justify finding the existence of an intolerable situation for the purposes of Article 13(1)(b).
Re A. (Minors) (Abduction: Custody Rights)  Fam 106 [INCADAT Reference: HC/E/UKe 48]
In this case, the court decided that dependency on State benefits cannot be said in itself to constitute an intolerable situation.
B. v. B. (Abduction: Custody Rights)  Fam 32,  2 All ER 144,  1 FLR 238,  Fam Law 198 [INCADAT Reference: HC/E/UKe 10]
In this case, it was said that inadequate housing / financial circumstances did not prevent return.
Re M. (Abduction: Undertakings)  1 FLR 1021 [INCADAT Reference: HC/E/UKe 20]
The Court suggested that the exception might be established were young children to be left homeless, and without recourse to State benefits. However, to be dependent on Israeli State benefits, or English State benefits, could not be said to constitute an intolerable situation.
United Kingdom - Scotland
Starr v. Starr, 1999 SLT 335 [INCADAT Reference: HC/E/UKs 195]
IGR, Petitioner  CSOH 208 [INCADAT Reference: HC/E/UKs 1154]
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]
Secretary For Justice v. Parker 1999 (2) ZLR 400 (H) [INCADAT Reference: HC/E/ZW 340]
There are some examples where courts have placed emphasis on the financial circumstances (or accommodation arrangements) that a child / abductor would face, in deciding whether or not to make a return order:
Harris v. Harris  FamCAFC 221 [INCADAT Reference: HC/E/AU 1119]
The financially precarious position in which the mother would find herself were a return order to be made was a relevant consideration in the making of a non-return order.
CA Paris, 13 avril 2012, No de RG 12/0617 [INCADAT Reference : HC/E/FR 1189]
In this case, inadequate housing was a relevant factor in the consideration of a non-return order.
De directie Preventie, optredend voor zichzelf en namens Y (de vader /the father) against X (de moeder/ the mother) (7 February 2001, ELRO nr.AA9851 Zaaknr:813-H-00) [INCADAT Reference: HC/E/NL 314]
In this case, financial circumstances were a relevant factor in the consideration of a non-return order.
United Kingdom - Scotland
C. v. C. 2003 S.L.T. 793 [INCADAT Reference : HC/E/UKs 998]
An example where financial circumstances did lead to a non-return order being made.
A, Petitioner  CSOH 215, 2012 S.L.T. 370 [INCADAT Reference: HC/E/UKs 1153]
In this case, adequate accommodation and financial support were relevant factors in the consideration of a non-return order.
European Court of Human Rights (ECrtHR)
Šneersone and Kampanella v. Italy (Application No 14737/09) [INCADAT Reference: HC/E/ 1152]
The ECrtHR, in finding that there had been a breach of Article 8 of the European Convention on Human Rights (ECHR) in the return of a child from Latvia to Italy, noted that the Italian courts exercising their powers under the Brussels IIa Regulation, had overlooked the fact that it was not financially viable for the mother to return with the child: she spoke no Italian and was virtually unemployable.
(Author: Peter McEleavy, April 2013)
Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.
United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:
Re W. (Abduction: Procedure)  1 FLR 878, [INCADAT cite: HC/E/UKe 37].
This strict view has not been repeated in later first instance English cases, see:
Re C. (Abduction: Consent)  1 FLR 414 [INCADAT cite: HC/E/UKe 53];
Re K. (Abduction: Consent)  2 FLR 212 [INCADAT cite: HC/E/UKe 55].
In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing. Moreover, there could also be cases where consent could be inferred from conduct.
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].
Convincing evidence is required to establish consent.
R. v. R.  IESC 7; [INCADAT cite: HC/E/IE 817].
The Re K. approach was specifically endorsed by the Irish Supreme Court.
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].
Consent need not be for a permanent stay. The only issue is that there must be consent and that it has been proved convincingly.
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].
Consent could be express or tacit.
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];
5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];
5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];
The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child. To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.
United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].
There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.
Preparation of INCADAT case law analysis in progress.