Re H (Abduction: Acquiescence)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Year | 1996 |
| Court | Court of Appeal (Civil Division) |
STUART-SMITH, WAITE AND OTTON, L JJ
Child abduction – acquiescence – children wrongfully removed from Israel and brought to England – father taking steps through a Beth Din in Israel in relation to matrimonial differences but not overtly seeking summary return of children – whether father's conduct amounted to subsequent acquiescence – whether court should order summary return of children.
The parties, who were members of the Orthodox Jewish faith, were married in London in May 1991. They had three children now aged 3, 2, and 16 months. In September 1991 the parties went to live in Israel. They visited England on a number of occasions. The last visit was during the summer of 1995 and they returned to Israel in September 1995. In November 1995 the mother removed the children to England. This removal was made without the father's consent.
Each parent involved the jurisdiction of the local rabbinical court, the Beth Din. In January 1996 the father commenced proceedings in the Beth Din in Israel in connexion with a Get (divorce) and summonses were issued by that court on five occasions for the mother to attend. The mother did not attend and eventually in March 1996 the Beth Din in London wrote to the father's Beth Din in Israel stating that the mother could not attend in Israel because she had to look after the three young children and had nowhere to stay in Israel.
In May 1996 the father issued an originating summons seeking the return of the children to Israel under the Hague Convention.
The Judge found that the children were habitually resident in Israel and that the father had not subsequently acquiesced in the removal of the children for the purposes of Article 13(a) of the Convention. The Judge therefore ordered the immediate return of the children to Israel. The Judge further held that even if the father had been found to have subsequently acquiesced, he would, in the exercise of his discretion, have ordered the children's return to Israel.
The mother appealed.
Held – allowing the appeal: (1) By Article 13 of the Convention the court was not bound to order the return of the child if it was established, inter alia, that the aggrieved parent had subsequently acquiesced in the removal or retention of the child. In order to establish such acquiescence the abducting parent must be able to point at some conduct on the part of the aggrieved parent which was inconsistent with the summary return of the child to the place of habitual residence. Such conduct could be active, taking the form of some step by the aggrieved parent which was demonstrably inconsistent with insistence on his or her
part upon a summary return; or it could be inactive in the sense that time was allowed by the aggrieved parent to pass without any words or actions on his or her part referable to insistence on summary return. In this context "summary return" meant an immediate return as distinct from an eventual return following the more detailed investigation and deliberation involved in the settlement of the child's future achieved through a full court hearing on the merits or through negotiation. Where the relevant conduct relied on was active, little if any weight was accorded to the subjective motives or reasons of the party so acting. Where the relevant conduct was inactive, some limited inquiry into the state of mind of the aggrieved parent and the subjective reasons for inaction might be appropriate.
(2) Once acquiescence had been established the court retained a discretion to grant or refuse an order for immediate return under the Convention. The factors governing the exercise of that discretion would be (a) the comparative suitability of the forum in the competing jurisdictions to determine the child's future in the substantive proceedings; (b) the likely outcome of the substantive proceedings; (c) the consequences of the acquiescence, with particular reference to the extent to which the child might have become settled in the requested State; (d) the situation which would await the absconding parent and the child if compelled to return to the requesting jurisdiction; (e) the anticipated emotional effect on the child of an immediate return (a factor which was to be treated as significant but not as paramount); and (f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return was refused.
(3) On the facts in this case the father had taken active steps towards an adjudication of the matrimonial differences through the Beth Din over many months without making any overt statement that he was insisting upon the summary, as opposed to the eventual, return of the children. In the circumstances, the Judge should have found that the father had acquiesced in the wrongful removal of the children. Further, when considering how he should exercise his discretion, the Judge had failed to address his mind to all the relevant factors. He had failed to consider whether the courts of Israel or England would be the more appropriate forum. He had also failed to consider the likely outcome of the substantive proceedings which was unfortunate because in a case where the children were so young and the mother claimed that she could not endure living in Israel, there must be at least a possibility that the court in either jurisdiction would regard it as adverse to the best interests of the children to compel her to live in a country where she was deeply unhappy. The circumstances in this case pointed overwhelmingly in favour of allowing the substantive proceedings to continue in England.
Per curiam: Recourse to the courts or conciliation procedures of religious authorities did not carry an automatic stamp of acquiescence by an aggrieved parent in the wrongful abduction of a child from a country of habitual residence. The role of priest and mullah, conciliator and elder, could often be invaluable. What was important was that the aggrieved parent should make it plain that such recourse was ancillary to or parallel with the Convention's remedy of...
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