[Anguilla][Consent][Petition Denied]
In Davis v Lake, 2022 WL 17843545 (District Court, W.D. Virginia, 2022) the district court denied the petition for the return of the parties’ two children to Anguilla. The Court denied the petition, finding that Petitioner had established a prima facie case for wrongful removal, but Respondent adequately showed Petitioner consented to children’s removal from Anguilla.
The Court noted that Anguilla and St. Martin are separate island territories in the eastern Caribbean Sea—and travel between the two islands involved only an approximately twenty-five-minute ferry ride. The children had St. Martin birth certificates and French European passports. Petitioner established a prima facie case. The court stated that if Petitioner “had consented to or subsequently acquiesced in the removal,” the children do not have to be returned. Miller, 240 F.3d 392 at 399 (quoting Hague Convention, art. 13a). Consent or acquiescence must be shown by a preponderance of the evidence. Padilla v. Troxell, 850 F.3d 168, 175 (4th Cir. 2017). The Fourth Circuit has held that “[t]o establish consent, we focus on the parties’ conduct prior to the removal or retention,” though “a petitioner’s conduct after removal can further inform whether [ ]he consented at the time of removal.” The Court found that Respondent established that Petitioner consented in the children’s removal. Respondent testified that in January 2020 she told Petitioner about her engagement, intended marriage, and plan to relocate to Virginia with the children. And she testified that at that time, Petitioner consented to their move to Virginia and further offered that he and Respondent each be responsible for the purchase of a ticket per child. The Court found Respondent’s testimony on this issue and her description of her other communications with Petitioner to be forthright and credible, as well as supported by contemporaneous evidence. When Petitioner did not answer Respondent’s later call attempting to further discuss the trip with him, she offered to meet him with the children in St. Martin to discuss the trip in person. Petitioner presented a contrary narrative. He testified that, when Respondent brought up relocation, Petitioner merely sought to initiate a follow-up conversation—but that he hadn’t consented to their move. However, the Court found Petitioner’s testimony lacking in credibility, forthrightness, and candor, and further it was belied by documentary evidence. Significantly, prior to the children’s relocation, Petitioner expressly acknowledged Respondent’s plans to move with them, as shown by his text message to her on September 8, 2021: In January of 2020, you had indicated to me that you would be moving during the summer of that same year to the USA to live fulltime [sic] with the children. We have had a pandemic since than [sic] However, when I tried to inquire this January 2021, who [sic] did not give me any information on what those previous plans were for the short nor long term. Can you kindly inform me accordingly if the children will be still relocating to the USA and if so, when most likely. The content of this text message is aligned with and supported Respondent’s testimony that Petitioner was aware of and agreed to their move, and at most he sought details on their plans—it in no way indicates that Petitioner had any objection to their move. And by not objecting despite clear knowledge of the planned move, Petitioner further bolstered Respondent’s credible testimony that Petitioner consented to their move to Virginia. The Court found that “a preponderance of the evidence demonstrates Petitioner consented to the [children’s] removal to the United States.” Padilla, 850 F.3d at 176–77. Thus, Respondent established the consent defense by a preponderance of the evidence, and the Court found that the children should not be returned to Anguilla
