C. v. C. 2003 S.L.T. 793

INCADAT legal file Hague parental abduction

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Removal and Retention – Arts 3 and 12

Consent – Art. 13(1)(a)
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.
Grave Risk – Art. 13(1)(b)
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.