Henry Brookman comments on a recent high profile case in Belgium concerning the alleged abduction of a child to the UK by her mother.
An English couple were living in Brussels when the wife left for the UK, taking the couple’s daughter with her. There were proceedings in Belgium for custody.
Both Belgium and the UK are signatories to the Hague Convention and Brussels II Regulation. The rules dictate that a child taken to another country without consent should be returned to the country in which they were last resident. There are few arguments against a Hague Convention claim other than, for instance, the defending parent being able to demonstrate that their spouse consented to the child leaving the country.
In this case, the English High Court refused the father’s request to have his daughter returned to Belgium. This led to the Belgium court suggesting that the English Judge must have misunderstood the evidence and also to criticise CAFCASS (the organisation that advises courts regarding the best interests of children).
In Henry Brookman’s interview with RTBF, he explained that consent does not have to be explicit, it can be inferred from circumstances. In this case, the English Judge has inferred, from the subsequent actions of the father, that the father did not object to the child staying in the UK. In essence, because the father initially appeared to knowingly stand by without raising objection, the Judge was led to infer that consent was implied – and therefore refused the father’s request. The interpretation of the evidence is all critical and, the English Judge had indeed followed the correct rules.
See Henry Brookman’s interview online here (from 21 minutes 40 seconds into the programme).
If you would like to know more about this issue please contact Brookman Solicitors for more information.