Summary
The parties were married in 1995 in Spain where they lived with their 5 children.
The father was Spanish; the mother was Welsh.
In 2007, the mother and children with father’s permission moved to Wales for the school year.
In June 2008, the mother informed the father that she would stay in Wales, wanting a divorce. It was agreed that the parties would try a marital reconciliation. To this end, the mother and children returned to Spain.
If the marital reconciliation attempt failed, then the father assured that they would be free to go back to Wales.
In October 2008, the mother and the children flew over to Wales.
The father expressed his disagreement for the mother and children to go to Wales. On 26th November 2008, he issued an originating summons in the High Court, seeking the return of the children to Spain.
On 27 March 2009, his request was granted by Sir Mark Potter, sitting as a judge at the High Court.
An appeal was made. The Court of Appeal dismissed the appeal. After determining that the habitual residence of the children was in Spain, Lord Justice Ward held:
“48 In my judgment the following principles should be deduced from these authorities. (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 (6) Consequently consent can be withdrawn at any time before actual removal.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 inquiry 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?”
49 The answer in this case is plain. Whatever the terms were upon which the mother returned to Spain, she knew or suspected, as Sir Mark Potter P found [2009] EWHC 638 at [48], that the husband would not consent or at the very least was likely to object to the children being removed from Spain at a time when they were happy in the new home and had successfully restarted at Spanish schools.” [48-49].