OK, take custody

The High Court in Re D (Children: Abduction) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3990.html

dealt with a private law dispute between parents over their children.  (I know that most family lawyers are gritting their teeth, wincing and in agonies about the use of the word ‘custody’ in the heading, but it is a direct quote from the key part of the case).

There seemed to be a lot of unhappiness between the parents as to the amount of maintenance that the father was paying to the mother.  The mother and children lived in France, the father in England.  They had a frank exchange of views by email and texts – starting about mother’s request that father extend his holiday with the children for two days and then getting very heated.  Unfortunately for the mother, this exchange of views happened whilst father was having holiday contact with the children so they were in his care, and she at one point used the words ‘OK take custody’

The father duly did, and when the mother sought the return of the children to her care and made an application to that effect relying on his abduction, the father’s case was that the mother had given clear and unequivocal consent in the message “Ok take custody” for the children being in his care, which is a defence to the Hague Convention abduction remedies.

On the face of it, “Ok take custody” is not a wise thing to say to someone when you are arguing about where the children should live, but it is also important to look at the context. Mother’s case was that the words were heat of the moment in a heated and difficult exchange and not to be taken seriously, father’s case was that she meant them literally and clearly and unequivocally consented.

Let’s look at the whole exchange :-

• In the summer of this year the parties agreed that the father would bring the children to England for a holiday lasting about five weeks. It was agreed that he would collect them on 26^th June and return them on 30^th July. Prior to the children’s departure to England, and over the first few days after their arrival, the parties engaged in a lengthy email exchange arguing about a range of matters. Translations of all the relevant emails have been put before me. Initially, they argued about whether the father could keep the children for two further days. It was the mother’s request that he do so; the father refused. The mother asked again; the father refused again. In so doing, he alluded to the fact that he was paying what he described as an “enormous amount of maintenance”.
• That led to a lengthy email from the mother in which she said inter alia about his payment of maintenance:

“It’s your duty to do that. You’re not doing it for me. Don’t pay maintenance if you don’t want to, couldn’t care less. What are you complaining about? Do you want to swap roles, even though my maintenance won’t be such an enormous amount as yours, as you make so clear?”

In his reply the father said inter alia:

“If you’re not there to pick them up on 30^th July in the afternoon I will file a written record of your absence and they will go back to school in England.”

In her reply, the mother said:

“Okay, if it was so simple then separated parents would send their children here and there without worrying about their wellbeing. Instead of filing a solution, you threaten me. Okay, I’m waiting to see. Bring them back the last week at school or else I’ll file a complaint for kidnapping.”

The father replied:

“It’s very simple, you agreed to take them back on the 30^th of July and I cannot keep them any longer.”

A little later:

“There’s no point in making a fuss about nothing, everything was very clear and the dates were clearly stated.

You’re the one who wants to change the dates, so it’s up to you to come up with a solution.

This is my last email on this subject.”

• All those emails took place on 20^th and 21^st June. That was the end of the exchange. The children were collected by the father and brought back to England on 26^th June for their holiday.
• On 1^st July the email exchange resumed with further arguments about money. In the course of these arguments, at 14.49 on 1^st July the father sent an email saying inter alia:

“If you’re not happy with the maintenance you get I can take custody back. I’m fed up of you treating me like a bank.

I’m waiting for you to confirm about the 30^th of July.”

The email exchange then continued as follows. At 15.12 the mother sent an email saying simply: “OK take custody.” A minute later she sent a further email to the father saying:

“You must still be in Paris? Pop round to pick up the rest of their belongings.”

At 15.23, that is to say some ten minutes later, the father replied:

“I will need a letter from you saying that I have formal custody starting today, I will also use this email.

It’s not very important about their belongings.

You need to pay about €450 maintenance.

I let you have custody because you were creating problems when I had them last year. Unfortunately you carried on creating problems once you had custody.

This time you’ll have to get sorted, it will be the last time they move, you’ll have to sort visits out the best you can.”

At 15.33, some ten minutes afterwards, the mother replied:

“You know the procedures.

Start by making an appointment with the Family Judge.”

At 15.42, nine minutes later, the father replied:

“They are in France because I agreed to it, and that was following procedures in their original place of residency.

This time is simply them coming home.”

At 15.52, some ten minutes later, the mother replied:

“Oh no. They go to school in France and their primary residence is in France. You want to go to prison, abduct them. You will need the French judge’s ruling to put them in a school. Good luck.”

At 15.55, some three minutes later, the father replied:

“Abducting? You just told me to take custody.

I’m not playing around here.

No worries about the judge in France, seeing as you’re the one who enrolled them in school in France and they were staying with you. I’ll let you fill in the questionnaire which you can find here.”

He then attached a website link, presumably to the French court office. At 16.01, some six minutes later, the mother replied:

“Why should I fill this form in? You sort it out.

End of conversation.

Have a good day.”

If you can read that without wanting to bang both of their heads together, I’d like to thank you for visiting the blog St Francis of Assisi. Quick reminder that these people are actually adults, who have responsibility for looking after children.  My take here is that mother was not clearly and unequivocally consenting (things like “You want to go to prison, abduct them” are pretty suggestive that she’s not agreeing to a change of residence), but that she was also pretty foolish in not picking up that the father was more than willing to call her bluff on the sarcastic ‘ok take custody’ email.

• The leading case on the question of consent in this jurisdiction under Article 13(a) is the decision of the Court of Appeal in Re P-J (Children)(Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588. Consent is a defence which the defendant has to prove. At para.48 Ward LJ identified the following nine principles to be applied when the court is considering a defence of consent:

“(1)  Consent to the removal of the child must be clear and unequivocal. 

(2)  Consent can be given to the removal at some future but unspecified time or upon the happening of some future event. 

(3)  Such advance consent must, however, still be operative and in force at the time of the actual removal.

(4)  The happening of the future event must be reasonably capable of ascertainment.  The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled.  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.’ The event must be objectively verifiable.

(5)  Consent, or the lack of it, 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.  It is not to be viewed in the context of nor governed by the law of contract.

(6)  Consequently consent can be withdrawn at any time before actual removal.  If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed. 

(7)  The burden of proving the consent rests on him or her who asserts it.

(8)  The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

(9)  The ultimate question is a simple one even if a multitude of facts bear upon the answer.  It is simply this: had the other parent clearly and unequivocally consented to the removal?”

• It is the father’s case here that the mother in her emails made statements which amount to “clear and unequivocal consent”. He points in particular to her use of the word “consent” in the email to which I have alluded and the subsequent emails, which he invites the court to read as clearly indicating that the mother was genuinely consenting and inviting him to go to the French court to obtain a formal order to avoid being accused of abduction. This is his interpretation of the references in the email exchanges which I have quoted to the court forms.
• On the other hand, Dr. Rob George on behalf of the mother submits, first, that there was no clear or unequivocal consent and, secondly, even if the mother did give consent in the email exchanges on 1st July, that was plainly withdrawn on 23^rd July, seven days before the end of the holiday on 30^th July which constituted the point at which the children were retained in this jurisdiction.
• I have no hesitation in accepting Dr. George’s submissions. First, I do not regard the mother’s words as I have quoted in the email exchanges on 1^st July as amounting to “a clear and unequivocal consent”. Plainly what she said in those emails was said in the heat of the moment, and I remind myself of the observations of Ward LJ in the passage from Re P-J which I have just quoted, namely that: “Consent, or the lack of it, must be viewed in the context of the realities of … the disintegration of family life.” This exchange took place in the course of a heated conversation between the parties in which the mother was becoming frustrated and angry about what she saw as the father’s unreasonable behaviour so far as the precise timing of the contact was concerned, the date on which the children would be returned, and matters of money. Whether or not she was justified in becoming frustrated and angry, I know not, but what is clear to me is that her statements made in the emails have to be viewed in that context, and I do not in those circumstances regard them as clear or unequivocal. To my mind, the fact that she referred to abduction only a few minutes later in a further email further shows that the emails do not amount to “a clear or unequivocal consent”.
• Secondly, even if I am wrong about that and the statements made in those emails were “a clear and unequivocal consent”, manifestly that consent was withdrawn before the children were retained.
• Accordingly, applying, as I do, the principles in Re P-J which relate to removal by analogy to the retention of the children, any consent that was given was plainly withdrawn on or by 23^rd July in the email which I have just read out. This, to my mind, is a blatant example of unlawful child abduction and my plain duty under the Hague Convention is to order the summary return of all three children, which I shall now do.