UK – H V H – 1996

UK – H V H – 1996 H. v H. the House of lords reversed the decision of the appeals court and ordered the immediate return of the children to Israel.

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H v H (Child abduction: Acquiescence) (UK 1996)Times Law Report 14 Aug 1996, Page 33, Court of Appeal
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Before Lord Justice Stuart-Smith, Lord Justice Waite and Lord
Justice Otton.

[Reasons 19 Jul 1996]

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 12
Jul 1996 and appeal brought by the mother against the decision of
Mr. Justice Sumner on 05 Jul 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 (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.

Solictors: Mishcon de Reya; Reynolds Porter.

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 Bnti 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 undertaking to return them to the
mother after the festival. The judge rejected that view.

Having decided that there was no acquiescence, the judge did not
need to consider discretion but he indicated that if there had
been acquiescence, he would still have granted a return order as
a matter of discretion.

However, in his Lordship’s judgment, the judge’s finding was
ill-founded in both the respects relied on by the mother. The
father had acted entirely properly in following to the letter the
tenets of his faith and omitting to take summary proceedings
until authorised to do so by the Bet Din.

But that was besides the point when it came to a consideration of
the objective inferences to be drawn from the fact that he took
active steps towards a settlement or adjudication of the
matrimonial differences through the medium of the Bet Din, and
persisted in those steps for many months, without making any
overt statement that he was insisting upon the summary, as
opposed to the eventual, return of the children.

The Passover holiday request, which might not have been
sufficient to constitute conduct inconsistent with the children’s
summary return, provided a cumulative factor which in the
particular circumstances of the present case tended to support
the inference of acquiescence.

The judge’s sympathy for a father whose conduct had been
influenced by faith and conscience was thoroughly understandable.
It was not, however, a factor to take into account when
exercising the particular discretion which depended upon a
weighing of objective considerations.

Thus the substantive proceedings would be allowed to continue in
this country where the father would be accorded a hearing no less
sympathetic to his claims to serve the welfare of the children
through care or contact than he would have received if the
dispute had been resolved in a civil court in Israel.

His Lordship did not want anyone who read the judgment to gain
the erroneous impression that recourse to the courts or
conciliation procedures of religious authorities carried the
automatic stamp o acquiescence by an aggrieved parent in the
wrongful abduction of a child from the country of habitual
residence.

The role in such international cases of the religious leader
could often be invaluable in conciliation. What was important,
however, was that the aggrieved parent should make it plain that
such recourse was being adopted as a step ancillary to, or in
parallel with the Hague Convention’s remedy of summary return,
and not in substitution for it.

Lord Justice Otton and Lord Justice Stuart-Smith agreed.

COMMENT by William M. Hilton, CFLS, Attorney At Law, Box 269,
Santa Clara, CA 95052-0269. Internet: [email protected]

15 Aug 1996

The Court of Appeal found that there was acquiescence due to the
father’s use of the religious court plus his request for the
children to be with him in Israel over Passover and then returned
to the mother in the United Kingdom, combined with no affirmative
statement by the father that the children must be summarily
returned to Israel.

The decision of the Court of Appeal, I would respectfully state,
is questionable.

No one would question one of the guiding principals underlying
The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention],
which is that it is to be broadly interpreted to cause the return
of children to their habitual residence and that defenses to the
return are to be narrowly construed.

I would also state that it is common ground that disputes over
children should be resolved by mutual agreement (with or without
the use of a third party) and that the court decision, no matter
how well founded, is the choice of last resort.

With that in mind I turn to the language of two sections of The
Convention:

Art. 7: Central Authorities shall co-operate with each other and
promote co-operation amongst the competent authorities in their
respective States to secure the prompt return of children and to
achieve the other object’s of this Convention. In particular,
either directly or through any intermediary, they shall take all
appropriate measures– * * * (c) to secure the voluntary return
of the child or to bring about an amicable resolution of the
issues[.]

Art. 12: Where a child has been wrongfully removed or retained
in terms of Article 3 and, at the date of the commencement of the
proceedings before the judicial or administrative authority of
the Contracting State where the child is, a period of less than
one year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the
child forthwith. (Emphasis added).

It seems to me that a “demand” for the immediate return of a
child to his or her habitual residence would be contra indicated
if one were in a settlement mode. This demand could be
reasonably interpreted by the other parent that there is not
going to be any settlement except on the terms of the person
making the demand.

On the other hand if it were the policy, so to speak, that the
parties were to be given a broad latitude to make offers and
counter offers without prejudice, as is normal in these
circumstances, then the desirable goal of settlement, as approved
of in Art. 7(c), could be achieved.

That is not to say that there would not be an outer limit on the
length of negotiations and indeed that is precisely, in my
opinion, how the one year period of Art. 12 should be
interpreted.

Art. 12 states in unequivocal language that if an application is
made within one year of the wrongful act, the child shall be
returned, absent a well founded defense under Art. 13.

While it is true that acquiescence is one of the Art. 13
defenses, it must be read in conjunction with other relevant
parts of The Convention, here I argue Art. 7(c), and the concept
of acquiescence of by action or inaction should be severely
limited, if not disallowed.

Decisions of the courts in the United States that have discussed
this point are in agreement with this concept. One such case is
Hallam and Hallam (Wisconsin 1991), Circuit Court of Mikwaukee
County, Branch 3, 19 Sep 1991, by the Hon. Patricia S. Curly,
Circuit Court Judge. (Unreported)

In Hallam intensive negotiations were taking place between the
parents, offers and counter offers were made, “agreements” were
reached and later discarded, etc. The Court, in holding that
there was no acquiescence, stated the following:

“THE COURT: I think that these parties were engaged in
negotiations and I think the fact that somebody may have said,
“Okay, let me think about it,” if that were to rise to the level
of “had consented to” in the Hague Convention, that it would have
a very chilling effect on any discussions that parties would have
with respect to their children; and I found it interesting that
the petitioners in this matter argued the written stipulation
statute in our state; and as I started to think about that, I
began to understand perhaps how that statute came to be because
there are instances when people are just uncertain as to exactly
what they want to do and I think the law assumes that people have
the right to be uncertain and some people are more decisive than
others and some people are also more easily cowed than others and
that the provision that it either be a written stipulation or it
be on the record in court is an appropriate one when we are
giving away rights such as are involved in custody situations.

So, I am willing to accept Mr. and Mrs. David Hallam’s testimony
as to what occurred here; and I suspect that Mrs. Hallam probably
did at some point lead them to believe that she was in agreement
with it but with the condition that she would be permitted to
take the paper work to her attorney for review and then assuming
that it was okay, sign it and that this also provided for her
breathing space to think about what she wanted to do and because
I don’t believe that that conditional agreement gives rise to
what was considered in the Hague Convention to be “had consented
to,” I feel that I must bow to the sovereignty of the Hague
Convention and return these children to England because there has
been no formal agreement nor any — the concept of promissory
estoppel comes to mind. Mrs. Hallam always preserved for herself
the right to take these things to an attorney; and I think
presumably one does not go to an attorney just to check the
English. That she had the right to withdraw from whatever
preliminary agreement she had; and I note that this happened
within a very short period of time. This isn’t a situation where
she allowed these parties to believe this for months and then
elected to bow out of whatever general agreement they had. It
happened very quickly and it happened during the course of
negotiations; and I note even from the Hallam’s testimony she had
refused to budge at all with respect to the issue of whether her
children should be returned to her for some weeks.”

My position would then be that there should be a presumption that
acquiescence under Art. 13 can only be found when there is
affirmative, active acquiescence and that acquiescence by action
or inaction should not be permitted, absent extraordinary
circumstances, within the one year period of Art. 12.

If, on the other hand, one year goes by, then the presumption
would shift and acquiescence by action or inaction would be
presumed absent a showing of extraordinary circumstances by the
affected parent.