H v H (Child abduction: Acquiescence)
| Jurisdiction | England & Wales |
| Judgment Date | 19 July 1996 |
| Date | 19 July 1996 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Stuart-Smith, Lord Justice Waite and Lord Justice Otton
Children - abduction - acquiescence - religious and civil proceedings
It was necessary for an aggrieved parent having recourse to a religious court over the abduction of a child abroad to make it clear that such recourse was ancillary to civil proceedings for his summary return in order to avoid the presumption of acquiescence.
The Court of Appeal so held in giving reasons for allowing on July 12 an appeal brought by the mother against the decision of Mr Justice Sumner on July 5, 1996 directing the immediate return to Israel of three children aged three, two and 16 months.
Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Cmnd 8281) provides: "…the judicial…authority of the requested state is not bound to order the return of the child if…(a) the person…having the care of the child…acquiesced in the removal…"
Miss Judith Parker, QC and Mr Lewis Marks for the mother; Mr Mark Everall, QC and Mr Scott Manderson for the father.
LORD JUSTICE WAITE said that the children's Israeli-born father and British-born mother were both orthodox members of the Jewish faith and were married in an arranged marriage in May 1991. Unfortunately, it did not prove to be happy, but the family were still together in occupation in Bnei Brak, Israel, when the mother, without warning, removed their children to England in November 1995.
Each parent then invoked the jurisdiction of their local Bet Din, the rabbinical court, and the mother also obtained orders from the civil court in this country. Shortly before Passover 1996, the father asked the mother to agree that the children should spend Passover with him in Israel, promising to return them to her after the festival. She refused.
The judge found that the family had been habitually resident in Israel. It was accordingly undisputed that when the mother brought the children to England she acted in breach of the father's custody rights under the law of Israel.
The case was presented on the mother's behalf to the judge as one of active acquiescence. The actions relied on were the father's active pursuit of his remedies through the Israeli Bet Din, unaccompanied by any request or demand for a peremptory return of the children and his request for the children to spend Passover with him, accompanied by his...
To continue reading
Request your trial
-
Re H (Abduction: Acquiescence)
...of the children. Sumner J. held that the father had not so acquiesced. The Court of Appeal (Stuart-Smith, Waite and Otton L.JJ.), The Times, August 14, 1996 reversed that decision, holding that the father had acquiesced. On 11 November 1996 your Lordships allowed an appeal to this House and......