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Back in the good old days when most of us at CFLP were training in family law, emails and texts were figments of a future imagination. They were as likely to become part of our daily lives as hoverboards and space tourism. If separated parents had things to sort out regarding children’s arrangements, they would phone each other or, if that wasn’t appropriate, write letters. Or their solicitors would, of course, as indeed we still do where necessary. But society’s patterns of communication are now very different, and this brings both opportunities and challenges where parenting negotiations take place.

These opportunities and challenges were highlighted this week as a report of a recent child abduction case came to light.

In this case, both the parents were French and had three children of 6, 4 and 2. They lived together in France until July 2012, when they moved to England as a family. The relationship between the parents broke down acrimoniously in March 2013 and the mother wanted to return to France with the children, while the father wanted to stay in England. The parents eventually agreed that the mother would be able to return to France with the children when she had found an appropriate property in which to live. She found one and she and the children returned to France in August 2014.

Both parents agreed that the father should have the children in England for a five-week holiday between late June and July 2015. In the run-up and at the start of the holiday, there was a long and bad-tempered email exchange between the parents about whether the father could look after the children for a couple more days, and about maintenance. In the course of that exchange, the following occurred (taken directly from the judgment):

[Father] “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 30th 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.”

There was no email contact for the subsequent three weeks while the children were with Dad in England. A few days before the end of the holiday, when the mother asked for confirmation of pickup time, she was told that the father would not be returning the children. He had taken her literally when she said ‘ok take custody’ and had enrolled them in English schools, and sent a form to the French court saying they were now resident in England. When he revealed this, the mother vehemently objected, but the father still did not return the children.

The mother then issued proceedings under the Hague Convention for the return of the children to the country of their habitual residence – France – and by 14 August, the English court had issued directions to hear the case.

At the hearing, the father said the mother had consented to him taking the children. This is a defence to their return under the Convention if proved. In response, the mother said her “ok take custody” email was “a slip of full thought and in anger” – she didn’t consent, and even if she did, she withdrew that consent before he retained the children unlawfully at the end of the holiday. Under the law, consent has to be in place at the time that the children are kept back.

The judge ruled in favour of the mother. He said,

“First, I do not regard the mother’s words as I have quoted in the email exchanges on 1st 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 … “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… any consent that was given was plainly withdrawn on or by 23rd 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.”

It goes without saying that the mother must regret her email sent in anger. It must be a huge relief to her that the judge could see that in the context of the exchange she did not mean that she was happy for the children to live overseas with their father, and that the judge considered the father had acted in bad faith by construing the exchange in this way.

We know that email – and texts, Facebook, Twitter, Instagram etc – can be convenient, helpful and appropriate methods of communication, but also that their informality can belie the potential effects of what is written. It is so easy to send a text or an email in anger without thinking it through. We’ve all done it. This is a distressing example of how far it can go if someone misconstrues – accidentally or willingly (as in this case) – an angry outburst. Thankfully the judge saw the context, but this case is a clear reminder that we should all think carefully before we press send.

If you have any queries about the best ways of communicating with your children’s other parent, or any other family law matter, do give us a call on 01223 443333 and make an appointment to speak to Adam, Sue, Simon, Gail or Tricia.

 

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