{"id":818040,"date":"2026-05-02T19:34:11","date_gmt":"2026-05-02T17:34:11","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/cm-v-fc-abduction-consent\/"},"modified":"2026-05-02T19:34:11","modified_gmt":"2026-05-02T17:34:11","slug":"cm-v-fc-abduction-consent","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/cm-v-fc-abduction-consent\/","title":{"rendered":"CM v FC (Abduction: Consent)"},"content":{"rendered":"
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MR. JUSTICE PETER JACKSON: 1 This is an application brought under the Hague Convention on the Civil Aspects of International Child Abduction 1980 by a mother, as I\u00a0shall call her, seeking the return to Romania of a 4-year-old child, who I\u00a0will describe by the initial \u201cD\u201d. The respondent to the application is D's father. Both parents have been expertly represented by counsel and solicitors in this application, which was issued on 21st\u00a0February. 2 D came with her father and her father's wife to England on 22nd\u00a0December and has remained here ever since. During that time her contact with her mother has been limited to Skype calls. 3 The parties had discussions this morning, coming close to an agreement that the child should now return to Romania, but there were fundamental differences between them about the arrangements for that return. Accordingly, the matter has been looked into in all its aspects in the course of this afternoon's submissions. 4 Briefly the background is that this is a Romanian family. The parents married in 2009 and are now in their 30s. In 2013 the father came over to England with the possibility that the family would join him, D having been born in 2012, but instead he formed another relationship and the marriage ended in\u00a0April\u00a02014. 5 There were proceedings in Romania concerning the divorce and the child. Those consisted of several months of negotiation leading to an agreement on 14th\u00a0October\u00a02014, which was endorsed by an order of the Romanian court on 12th\u00a0November\u00a02014. That order placed D in the joint custody of her parents, provided for her to reside with her mother and to have regular contact with her father, including in England. In\u00a0December\u00a02014 the father remarried. 6 Through 2015 and again in 2016 D had a number of holidays in England with her father lasting typically for 10 days or so, and leading to return to her daily life in Romania. It is apparent that the parents' relationship, which is not an easy one, included at various times discussions about the possibility that the mother and D would move to England. In\u00a0October\u00a02016, for example, the mother came over for four days and stayed in the father's home, that being, as I\u00a0see it, in the nature of a reconnaissance. The father says that the initiative for this came from the mother; the mother says that she was under continuous pressure from the father. It is not necessary to resolve that matter. 7 At all events, on 20th\u00a0December, just before last Christmas, the mother handed D into the care of the father and his wife knowing that they would take her to England. Jumping forward, on 26th\u00a0January the mother approached the Romanian\u00a0Central Authority requesting it to communicate with the English Central Authority to take proceedings to recover D. That led to these proceedings in\u00a0February, as I\u00a0have already mentioned. 8 The mother's case is that she had agreed that the father should bring D to England for another holiday period of short duration followed by her return to Romania, as had happened on four or five previous similar occasions. The father's case now is that the mother had agreed to him bringing D here to live with him and his wife and their small child indefinitely, with the possibility that the mother herself would follow on in due course. He therefore claims that the mother has consented within the meaning of Art. 13(a) of the Convention and that on that ground her summons should be dismissed. 9 He further points to some abnormal behaviour that he says he has experienced from D that suggests that she has been influenced by neglectful parenting, particularly circumstances in which there is said to have been some sexual play between D and one or more other small children. He claims that this information engages Art.\u00a013(b), so that the court should refuse to return D on the basis that she would be at risk of grave harm, or otherwise be placed in an intolerable situation. 10 I\u00a0have read the statement of the father made on 23rd\u00a0March and of his wife, and also the statement of the mother made on 3rd\u00a0April. I\u00a0have also studied, with counsel's help, the exhibits to those statements. 11 The Convention by Art.\u00a012 requires this court, following a time-limited summary procedure, to order the return to the country of habitual residence of any child who has been wrongfully removed forthwith, unless certain specified defences are made out and the court considers that return is not appropriate. In this case the father contends that the removal on 22nd\u00a0December from Romania was not wrongful because it was with the consent of the mother. 12 I\u00a0have been reminded of the well-known authority Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051 and, in particular, para. 48 in which, in essence, it is made clear that the court must take a practical family-focused approach to deciding whether consent was given or not, and that consent must be clear and unequivocal. The father in this case bears the burden of establishing that. 13 I\u00a0start from the standpoint that the mother had, only two years before the child was removed, achieved a hard-negotiated outcome granting the residence of D to her. I\u00a0then proceed to the point where it is apparent that the mother contemplated moving with D to England. I\u00a0next come to a document which, in translation, appears at page C39A. It is a statement made by the mother before a notary public in Romania agreeing and consenting to D travelling to the United Kingdom by any means as a tourist and returning to Romania between\u00a0May\u00a02016 and\u00a0May\u00a02017. 14 It is asserted, on the father's behalf, that this amounts to a consent to the child's removal to live here in\u00a0December. By no means can that document be understood in that way. It is clearly a document created for the purpose stated by the mother, namely to assist D in going backwards and forwards for the purpose of holidays. 15 The next document is at p. C63 in translation. D's travel documents were, as I\u00a0understand it, due to run out at the end of\u00a0January\u00a02017. There was some question as to which parent should renew them. It was first intended that the mother should renew them and the father had given her money to do it. On 19th\u00a0December she signed another notarial agreement providing her consent to D being issued an individual passport. Since the existing passport expired at the end of\u00a0January the father says that this shows the mother knew that the child would not be back by the end of\u00a0January. The document might bear that interpretation, but it might, in my view, more easily bear the interpretation placed upon it by the mother, which is that one or other parent had to renew the document so that the child had a future passport, and this was simply a step taken to enable the father to do it rather than herself. I\u00a0regard that as being a neutral piece of evidence. 16 What is not, in my view, neutral is the contemporaneous email correspondence between the parents. This appears between pp. C15 and C19 and it is, in my view, highly illuminating. I\u00a0will not lengthen this judgment with extensive citation of some five pages of correspondence stretching between 21st\u00a0November\u00a02016 and 18th\u00a0January\u00a02017. It is to be noted, however, that on 21st\u00a0November the mother said, in effect, that D is not to stay away from her for too long because that had affected her on previous visits, that she could go to her father for the holidays but not for one month, and suggested 24th December\u00a0to\u00a02nd January being suggested. In a text conversation on that occasion she says, \u201cI\u00a0will never give up my child\u201d, to which the father replies: \u201cWhen she is with me she's with me and that's that. When she's with you take care of her if you can't give up.\u201d 17 On\u00a02nd January the mother asked the father to bring the child back by 15th\u00a0January. On\u00a06th January\u00a0the father declared that he has put the child into school and the mother says, \u201cWhy is she going to school? She has a school here\u201d and the father says that a child in England has to go to school at four years old. The mother replies, \u201cThe child is a Romanian citizen. She attends kindergarten here\u201d. The father says that she's a citizen of the EU. The mother replies: \u201cBut the girl is in my care and she has her residence with me. She comes to you during the holidays.\u201d The father's response to this is, in my view, highly significant. He says: \u201c\u2026and by the way dad says he was the one taking her to a psychologist and he was the one paying for it because you failed to see the girl has problems. She has her residence with you and she stays with others all the time.\u201d He then goes on to criticise the mother as a parent and a person. 17 It is, to my mind, inconceivable that if the father genuinely believed the mother had agreed to the child coming to live with him indefinitely that he would not have said so. 18 This pattern continues. On 12th\u00a0January the father issued proceedings in Romania to vary the order of 2014. It should not be overlooked that in order to issue those proceedings it must be presupposed that the child is habitually resident there. There is no evidence that the father told the mother and she was not served with the proceedings until the middle of\u00a0February. Instead there is a lengthy exchange lasting for some two pages on 12th\u00a0January along these lines: \u201cMother: If you don't bring her back until 15th\u00a0January I\u00a0will sue you in court. Father: You agreed with the end of\u00a0February. Mother: I\u00a0never said that. Father: Her passport expires end of\u00a0January. You made me proxy because you knew she would exceed that date. Mother: I\u00a0could not reach an agreement with you with regards to the date.\u201d 19 Then the conversation degenerates with the father criticising the mother for her care of the child and the mother continually stating that she wanted the child back and had not agreed. 20 Once again the father's defence direct to the mother is nothing like his defence to the court. He said there, \u201cYou agreed with the end of\u00a0February\u201d. He says now that she agreed indefinitely. 21 At the end of that conversation: \u201cMother: I\u00a0want you to bring the child home. Father: I\u00a0have no further things to discuss.\u201d So the correspondence goes on until 18th\u00a0January when the same inconclusive toing and froing continues. 22 On 6th\u00a0March the father, who was not represented but who has a command of English, appeared before Cobb J. On that occasion he tried to persuade the judge that he had the right to have D with him until\u00a0May\u00a02017 on the basis of the travel pass that the mother had agreed to. Against that background the father and his wife had filed evidence in support of the contention that the mother agreed to an indefinite move. They say that on 25th\u00a0November the mother said she was still fine with such a move (para.\u00a034) and that she said something similar on 19th\u00a0December. 23 Miss\u00a0Harding, who said everything that could conceivably be said on the father's behalf, applied for the court to admit oral evidence from the father and his wife in support of those statements. She said that it would enable the court to be impressed by the truthfulness of the couple and further to understand their concerns for D. As I\u00a0said before the submissions were concluded, I\u00a0do not think it appropriate to receive oral evidence. Miss\u00a0Harding accepted that not only is there no agreement evidenced in the contemporaneous documents, but that they in fact differ from any contention that there was agreement. 24 It is a short step from that concession, rightly made, to the reality, which is that the documents are inconsistent with the father's case in his statement. I\u00a0do not consider that it is the proper function, in these essentially summary proceedings, to allow a party to seek to persuade the court by oral evidence of something that cannot stand alongside the contemporaneous accepted record. I\u00a0therefore refused the application. 25 The only other document relied upon by the father is an email that he sent to the mother on 19th\u00a0January calling her a liar and saying that he had clear proof that she had agreed to the girl staying. 26 Returning then to the question, \u201cHas the father established the mother consented?\u201d the answer is clearly that he has not. The true picture here, on the information available to this court, is that the father has been dissatisfied with the arrangements for D for a long time and has wanted to change them in favour of an arrangement where he takes care of her. In that respect, looking at it from his point of view, he made some progress towards the end of 2016 in that the mother was prepared to consider coming to England with D. As Miss\u00a0Harding put it, by the end of the year the father felt that he was being \u201cmessed around\u201d by the mother in a deliberate attempt on her part to get a better financial deal and arrangements that suited her better. 27 I\u00a0have no reason to doubt that he felt like that, nor can I\u00a0tell where the truth lies in relation to the mother's overall intentions. However, I\u00a0am perfectly clear that her consent to D coming to England over Christmas was for a short time limited holiday period with a view to her return to her normal existence in Romania. What happened after that was a matter for the future. I\u00a0am afraid here the father has exploited the situation in his impatience to achieve what he wanted. I\u00a0am drawn to that conclusion, firstly, by the mother's contemporaneous responses in the email, secondly, by her very swift legal action to seek the return of the child, and thirdly, by the father's responses to the situation, which included taking legal action in Romania, and his entire failure to give the obvious response to the mother's open protests. 28 The mother's agreement was to a short holiday. The father took the child intending to keep her for as long as he could. That is no agreement, no consent, and the removal of the child was wrongful. It is not necessary to identify the precise date when D was due to return, but it was measured in no more than a small number of weeks at the outside. 29 Turning to the issue of grave risk of harm, I\u00a0remind myself that the question here is not a welfare one for this court except in the very short term. It is only a relevant matter if the stringent standards of grave risk of harm or intolerability are established. 30 The father's statement between paras.\u00a047 and 70 sets out his concerns for his daughter's welfare and his complaints about her mother's behaviour. In particular, at paras.\u00a065 to 70 he touches upon sexual matters. As I\u00a0said during the hearing, I\u00a0do not decide on these matters, I\u00a0take them at their highest for the purpose of this exercise, and I do not\u00a0disrespect the concerns of any caring parent. What I\u00a0do say is that these matters do not come close to reaching the threshold required by the Convention. They are all matters that are properly dealt with by the Romanian court if they need to be dealt with by a court at all, and could conveniently be dealt with perhaps during the proceedings brought by the father himself. 31 Further to that, it is not open to me to refuse to return the child to Romania if protective measures are available there. Although there is no specific offer so far made on behalf of the mother, I\u00a0am perfectly satisfied that the issues that the father wishes to raise are ones that would quite normally fall within the power of the Romanian authorities to regulate. The mother and the father are both intelligent persons who have fair knowledge of the systems in Romania. Romania is the country of this child's habitual residence. Romania is the country in which it is said that these matters arose. From every point of view, it is more appropriate that the matter be dealt with there if it needs to be pursued. That defence is also without substance. 32 It follows that there will be an order for the immediate return of D to Romania. The main issue which I\u00a0deal with now, to enable the parties to have further discussion, is the question of how the child is to return. By virtue of s.\u00a05 of the Child Abduction and Custody Act 1985 and Art.\u00a011 of the Hague Convention 1996 I\u00a0have the power not only to regulate the child's departure from this jurisdiction but also her arrival in Romania, and to do so up to the point where there can be an effective hearing before the Romanian court. 33 It will be recalled that the father agreed to return with D provided he kept her in his care. The mother, who has travelled from Romania for this hearing, says that she should be the parent who brings D back. I\u00a0agree. The mother is the parent who has been entrusted with the care of this child under Romanian law. The father has been found responsible for her wrongful removal. The idea that he should be allowed to continue to detain the child from her mother's care, no doubt for as long as he can manage in Romania, is, in my view, plainly contrary to D's interests. The child will return as soon as possible with her mother. The time for the return shall be as early as travel documents can be made available, it being a feature of the matter that although the father was put in the position to get her a travel document he did not do so. 34 Those are all the matters, I\u00a0think, that I\u00a0need to deal with now. This case is scheduled to continue into tomorrow and so it shall, unless the parents are able to reach a comprehensive agreement on the next steps overnight. If they are and I\u00a0see the draft of an agreement by 10.30, then I will do what I\u00a0can to prevent the parents having to return to court. I\u00a0think it may be more likely that they will need to do so, but I\u00a0leave that to their experienced representatives to discuss with them. My intention is that the child should be returned to her mother as soon as reasonably possible if arrangements in this country are suitable, but that will be a matter of detail for the parties to discuss amongst themselves. __________<\/p>\n<\/div>\n

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Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

MR. JUSTICE PETER JACKSON: 1 This is an application brought under the Hague Convention on the Civil Aspects of International Child Abduction 1980 by a mother, as I shall call her, seeking the return to Romania of a 4-year-old child, who I will describe by the initial \u201cD\u201d. The respondent to the application is D’s father. Both parents have been…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[8046],"kji_chamber":[],"kji_year":[52833],"kji_subject":[7612],"kji_keyword":[8265,8048,8047,10888,13328],"kji_language":[7611],"class_list":["post-818040","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-high-court-family-division","kji_year-52833","kji_subject-fiscal","kji_keyword-child","kji_keyword-father","kji_keyword-mother","kji_keyword-return","kji_keyword-romania","kji_language-anglais"],"yoast_head":"\nCM v FC (Abduction: Consent) - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/cm-v-fc-abduction-consent\/\" \/>\n<meta property=\"og:locale\" content=\"zh_CN\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"CM v FC (Abduction: Consent)\" \/>\n<meta property=\"og:description\" content=\"MR. JUSTICE PETER JACKSON: 1 This is an application brought under the Hague Convention on the Civil Aspects of International Child Abduction 1980 by a mother, as I shall call her, seeking the return to Romania of a 4-year-old child, who I will describe by the initial \u201cD\u201d. The respondent to the application is D's father. 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JUSTICE PETER JACKSON: 1 This is an application brought under the Hague Convention on the Civil Aspects of International Child Abduction 1980 by a mother, as I shall call her, seeking the return to Romania of a 4-year-old child, who I will describe by the initial \u201cD\u201d. The respondent to the application is D's father. 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