In re H and Others (Minors) (UK 1997)[1997] House of Lords, 10 Apr 1997
2 International Abduction [UK 1997]
========================================================+++
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re H and Others (Minors)
Oral Judgment: 11 November 1996
Reasons: 10 April 1997
Decision by Lord Browne-Wilkinson
Concurrence by: Lord Jauncey of Tullichettle, Lord Mustill,
Lord Hoffmann and Lord Clyde.
001 In this appeal three young children were removed by
their mother, the respondent, from their home in Israel and
brought to England without the consent of the appellant,
their father. Some six months after the date of such
removal, the father applied to the courts in England for an
order directing the summary return of the children to Israel
under the Hague Convention on the Civil Aspects of
International Child Abduction, 1980. Under the Convention,
the English court was bound to order such summary return
unless the father had “acquiesced” in the removal of the
children. Summner J. held that the father had not so
acquiesced. The Court of Appeal (Stuart-Smith, Waite and
Otton L.J.J.), 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 ordered the immediate return of the children,
indicating that reasons would be given at a later date.
These are my reasons.
The facts
002 The father was born in Israel; the mother in England.
Both are strict Orthodox Jews. Their families arranged
their marriage, which was celebrated in London in May 1991.
Following the marriage, the couple spent much of their time
in Israel but also substantial periods with the mother’s
family in England. There was a dispute before the judge
whether or not the children were habitually resident in
Israel. The judge held that they were so resident and his
decision was not subsequently challenged.
003 The oldest child was born in England on 3 October
1992; the second child was also born in England on 18
December 1993; the third child was born in Israel on 6
February 1995.
004 Unfortunately the marriage was not successful, partly
at least because the mother was not happy living in Israel.
On 9 November 1995 the mother flew to England with the
children. At first she contended that the father had
consented to this but it was accepted before the judge that
the children were removed without the father’s knowledge or
consent. On 13 November 1995 the mother obtained an ex
parte order from Edmonton County Court which, inter alia,
prohibited the father from removing the children from the
care and control of the mother or from England. The order
was continued, inter partes, on 23 November 1995. However,
the father did not receive the notice of that hearing until
the day after it took place.
005 It is of central importance that both the father and
the mother are Orthodox Jews. The father in his evidence
deposes that their religious beliefs:
“. . . involves us living by the Torah and an
obligation, whenever there is a problem, to
refer matters to my Rabbi and seek his advice.
Under the terms of our religious persuasion we
are obligated, in the event of a dispute
between the two members of the community, toe
appeal to a ‘Beth Din.’ This is, in effect a
religious Court of Law and according to our law
I am not able to seek the help of a ‘regular’
Court of Law unless authorised so to do by the
Beth Din. It is because I am an Orthodox Jew
that I have proceeded in this case in the way
that I can now recount. The simple position is
that if I had sought the assistance of any
court other than the Beth Din (without their
consent) I would have been subject to effective
excommunication from my lifestyle and from my
faith. This would have had the effect,
inevitably, of destroying my community life. I
would have been forbidden ever to go to any
synagogue and never again invited to an
Orthodox Jew’s home — even those of my own
family. None of my present friends and
acquaintances would speak to me.”
006 On hearing of the English proceedings, the father
immediately consulted his local Beth Din in Israel (“the
Israel Beth Din”). He was told to ignore the English order
and not take part in the English proceedings. On 26 January
1996 the Israel Beth Din issued a summons to the mother
directing her to attend that court in Israel on 19 February
1996 “for the purpose of a Get (Bill of Divorcement) and the
ramifications thereof.” The mother, having failed to attend
the Israel Beth Din, received further summonses on 19 and 28
February 1996. At this stage the mother consulted her Beth
Din in London which sent a letter to the Israel Beth Din
saying that the dispute should be resolved in London not in
Israel. On 11 March the Israel Beth Din informed the mother
that her submission that there should be rabbinical
proceedings in England was rejected and served her with a
fourth summons to attend the israel Beth Din, this time on
18 March 1996. On 15 March the London Beth Din again wrote
to the Israel Beth Din claiming that the London Beth Din was
the appropriate forum. On 21 March the Israel Beth Din
rejected that submission and issued a fifth summons against
the mother to appear on 22 April 1996 before the Israel Beth
Din, it made an order authorising the father to take
whatever steps he saw fit. The father then immediately
invoked the Convention procedures as a result of which on 3
May 1996 the father’s originating summons was issued seeking
the summary return of the children under the Convention.
007 Finally a letter dated 25 March 1996 but in fact not
sent until the middle of May 1996 the London Beth Din
requested the father to withdraw the Convention proceedings
to avoid “contempt and slander” against the father for
taking proceedings in the secular courts.
The Convention
008 The Convention was signed in 1980 and a large number
of countries, including the United Kingdom and Israel, have
acceded to it. It was incorporated into the law of the
United Kingdom by the Child Abduction and Custody Act, 1985,
section 1(2) and Schedule 1. The recitals and Article 1 of
the Convention set out its underlying purpose. Although
they are not specifically incorporated into the law of the
United Kingdom, they are plainly relevant to the
construction of an international treaty. The object of the
Convention is to protect children from the harmful effects
of their wrongful removal from the country of their habitual
residence to another country or their wrongful retention in
some country other than that of their habitual residence.
This is to be achieved by establishing a procedure to ensure
the prompt return of the child to the State of his habitual
residence.
009 Articles 3 and 4 provide, so fare as relevant, that
the removal or retention of a child under 156 is wrongful
when it is effected in breach of rights of custody enjoyed
by a person under the law of the State where the child was
habitually resident. Articles 6 and 7 provide for each
Contracting State to establish a Central Authority. Under
Articles 8 and 9 a person claiming that a child has been
wrongfully removed or retained can apply to the Central
Authority of the State of habitual residence, which then
transmits the application to the Central Authority of the
State to which the child has been abducted. Under Article
10 the later Central Authority must seek the voluntary
return of the child. If this proves impossible, proceedings
for return of the child to the country of habitual residence
are brought before the judicial or administrative
authorities of the State to which the child has been
abducted.
010 For present purposes, the critical provisions of the
Convention are contained in Articles 12 and 13 which, so far
as relevant, provide as follows:
“Article 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.
The judicial or administrative authority, even
where the proceedings have been commenced after
the expiration of the period of one year
referred to in the preceding paragraph, shall
also order the return of the child, unless it
is demonstrated that the child is now settled
in its new environment. . .”
“Article 13
Notwithstanding the provisions of the preceding
Article, the judicial or administrative
authority of the requested State is not bound
to order the return of the child if the
person, institution or other body which opposes
its return establishes that–
(a) the person, institution or other body
having the care of the person of the child was
not actually exercising the custody rights at
the time of removal or retention, or had
consented to or subsequently acquiesced in the
removal or retention; or
(b) there is a grave risk that his or her
return would expose the child to physical or
psychological harm or otherwise place the child
in an intolerable situation. . . ” (emphasis
added).
011 Under Article 16, the courts of the State to which the
child has been abducted are not to determine the merits of a
custody claim after receiving notice of a wrongful removal
or retention until it has been determined that the child is
not to be summarily returned or unless an application is not
lodged within a reasonable time following receipt of the
notice.
012 In the present case, therefore, the following points
had to be considered by the English court:
1. Whether the father had rights of custody in
Israel: This was admitted by the mother.
2. Whether the children wee habitually resident in
Israel: Article 4. The burden of so proving was on
the father. The point was disputed by the mother but
the judge held them to be so resident and there was on
appeal on this point.
3. Whether the father had consented to the removal of
the children from Israel, the burden of proof being on
the mother: Article 13. The mother did not contend
before the judge that the father had consented to the
removal of the children.
4. Whether the father had acquiesced in the removal
or retention of the children, the burden of proof
being on the mother: Article 13. If he had not so
acquiesced, the judge was bound by Article 12 to order
the summary return of the children to Israel. The
mother alleged that the father had acquiesced in the
removal of the children. The judge held that he had
not.
5. If, contrary to the judge’s finding, the father
had acquiesced in the removal of the children, under
Article 13 the judge, although not bound to order
their summary return, had a discretion whether or not
to do so.
The Judge’s decision
013 The judge directed himself in law that “acquiescence”
as used in the Convention means conduct by a aggrieved
parent subsequent to the unlawful removal which is
inconsistent with the insistence on the summary return of
the children under the Convention.
014 The mother’s case was that the father, by pursuing his
claim in the Israel Beth Din, had elected to proceed in the
religious courts for divorce and was not, on the evidence,
even seeking return of the children in the Beth Din
proceedings. In addition, she argue that the father’s
request that the children should go to Israel for Passover
and then be returned to England was inconsistent with
seeking an order for the children’s immediate return. The
judge rejected these submissions holding that the father, as
his evidence showed, was throughout anxious to secure the
return of the children to Israel and that his recourse to
the Israel Beth Din in accordance with the requirements of
his religion was not inconsistent with his later (when the
religious authorities permitted it) seeking summary return
under the Convention. Unfortunately, the judge was misled
by the letter from the London to the Israel Beth Din
(wrongly dated 25 March but not in fact sent until after
these proceedings under the Convention were started) as
showing that the mother’s religious advisers were themselves
taking the view that procedure in the Beth Din was the right
course. He further held that the request by the father for
access was the act of a man waiting for the Israel Beth Din
to secure the return of the children but desperate to see
them and was not an act showing that he acquiesced in their
remaining in England. The judge accordingly ordered the
immediate return of the children to the father in Israel on
the father’s undertaking, amongst other things, to start
appropriate family proceedings in the civil courts in
Israel.
The decision of the Court of Appeal
015 Waite, L.J., (with whose judgment the other members of
the court agreed) after setting out the facts and Article 13
of the Convention stated the law to be as follows:
“The phrase `subsequently acquiesced in the
removal or retention’ has been elaborated in
England by case-law. The governing authorities
are Re A (Abduction: Custody Rights) [1992] Fam
106, sub nom Re A (Minors) (Abduction:
Acquiescence) [1992] 2 FLR 14, Re AZ (A Minor)
(Abduction: Acquiescence) [1993] 1 FLR 682 and
Re S (Minors) (Abduction: Acquiescence) [1994]
1 FLR 819. Their general effect, to summarise
it shortly, is as follows. In order to
establish acquiescence by the aggrieved parent,
the abducting parent must be able to point to
some conduct on the part of the aggrieved
parent which is inconsistent with the summary
return of the child to the place of habitual
residence. `Summary return’ means in that
context an immediate or peremptory return, as
distinct from an eventual return following the
more detailed investigation and deliberation
involved in a settlement of the children’s
future achieved through a full court hearing on
the merits or through negotiation. Such
conduct may be active, taking the form of some
step by the aggrieved parent which is
demonstrably inconsistent with insistence on
his or her part upon a summary return; or it
may be inactive, in the sense that time is
allowed by the aggrieved parent to pass by
without any words or actions on his or her part
referable to insistence upon summary return.
Where the conduct relied on is active, little
if any weight is accorded to the subjective
motives or reasons of the party so acting.
Where the relevant conduct is inactive, some
limited inquiry into the state of mind of the
aggrieved parent and the subjective reasons for
inaction may be appropriate.”
016 He then summarised the judge’s judgment and recorded
that the case argued on behalf of the mother on appeal was
based on two propositions. First, that the judge had
misdirected himself in law since this was a case of “active
acquiescence” and the judge had wrongly relied on the
father’s “subjective motives” for failing to invoke the
Convention promptly. Second, that the judge (misled by the
dating error) had wrongly attached significance to the
letter dated 25 Mar 1996 as showing that the mother had
herself gone along with the matter being dealt with in the
Israel Beth Din. He held that both the mother’s arguments
were correct. After saying that the father had acted
entirely properly within the tenets of his faith in not
taking Convention proceedings until authorised by his Beth
Din, he continued:
“That is beside the point, however, when it
comes 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 Beth 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.”
017 He gave some weight to the father’s request for access
over Passover and to the judge’s misdirection as to the
letter wrongly dated 25 March and held, applying the
principles of law that he had set out, that the judge ought
to have found that the father had acquiesced.
018 Waite L.J. then proceeded to exercise the discretion
which arises under Article 13 where there has been
acquiescence and held that the determination of the future
of the children should be conducted by the courts of this
country not those of Israel.
019 Waite L.J. added the following footnote:
“FOOTNOTE
It would be a pity if anyone reading this
judgment gained the erroneous impression that
recourse to the courts, or to the conciliation
procedures, of religious authorities carries
the automatic stamp of acquiescence by an
aggrieved parent in the wrongful abduction of a
child from the country of habitual residence.
The role in these international cases of priest
and mullah, mediator and elder, can often be
invaluable in bringing about through parental
conciliation the harmony in the lives of
children which it is the express purpose of the
Convention to achieve. What is important is
that the aggrieved parent should make it plain
that such recourse is being adopted as a step
ancillary to, or in parallel with, the
Convention’s remedy of summary return, and not
in substitution for it.”
Active and Passive Acquiescence
020 The primary question in the present case is whether
the father, by pursuing his remedies in the Israel Beth Din
in accordance with the tenets of his religion rather than
promptly bringing proceedings for summary return of the
children under Article 12, has acquiesced in “the removal”
of the children. It is not a case of wrongful “retention”
by the mother: it is established by the decision of this
House in In re H (Minors) (Abduction: Custody Rights) [1991]
2 A.C. 476 that there is “retention” of the child for the
purpose of the Convention only where the child has been
lawfully taken from one country to another (e.g. for staying
access for a defined period) and there has been a wrongful
failure to return the child at the expiry of that period.
In the present case, the mother wrongfully removed the
children and the question is whether the father has
acquiesced in that removal.
021 It will be apparent from my account of the decisions
in the courts below that they approach the question of
acquiescence from different standpoints. Summner J.
considered all the circumstances of the case with a view to
deciding whether the father had in fact agreed to the
children staying in this country at least until their
long-term future had been determined by some court. The
Court of Appeal, on the other hand, applied a rule of law,
namely that in a case of “active” acquiescence (said to be
the father’s persistent attempt to have his matrimonial
affairs dealt with in the Israel Beth Din) the actual state
of the father’s mind was an irrelevant factor to take into
account. In the words of Waite L.J. “Where the conduct
relied on is active, little if any weight is accorded to the
subjective motives or reasons of the party so acting.” The
question is whether there is any such rule of law.
022 The distinction between “active” and “inactive”
acquiescence was first drawn by the Court of Appeal in In re
A. (Minors) (supra). In that case the mother had wrongfully
removed the children from Australia to this country.
Shortly thereafter the father wrote a letter to the mother
saying that “I think you know that what you have done is
illegal, but I’m not going to fight it” and generally giving
the impression that he would regretfully go along with the
children’s staying permanently with the mother in this
country. In fact, unknown to the mother, the father took
immediate legal advice in Australia and was told of his
Convention rights. Before the mother received the father’s
letter, there was a telephone conversation in which the
father told the mother that he had taken such advice and
mentioned the Convention. Despite the father’s endeavours,
there was a delay of some three months before the mother was
served with proceedings under the Convention and in the
meantime there was no further relevant communication between
the two. Thrope J. held that it was not sufficient to
investigate only the communications between the parents:
whether or not there had been consent or acquiescence could
not be determined only by what he represented to the other
spouse: “His words must be judged in the round. His words
must be judged together with his actions.” Judged on that
basis Thorpe J. held that it was clear that the father had
not, in fact acquiesced and ordered the summary return of
the children.
023 The Court of Appeal by a majority reversed the judge’s
decision. Balcombe L.J. in a powerful dissenting judgment
agreed with the judge’s approach: whether or not the party
had acquiesced was a question of fact directed to his
subjective frame of mind to be judge in all the
circumstances of the case. However, the majority reversed
the judge’s decision. Stuart Smith L.J. for the first time
drew the distinction between active and passive
acquiescence. In his formulation, active acquiescence
consists of words or actions inconsistent with the wronged
parent having an intention to insist on his rights and
consistent only with an acceptance of the status quo:
passive acquiescence consists of silence or inactivity from
which the court can draw an inference of acquiescence. He
held that the father, by writing the letter, had actively
acquiesced and that the judge had erred in taking into
account his actual intentions subsequent to that letter and
uncommunicated to the mother. Lord Donaldson M.R. adopted a
similar approach.
The later decisions
024 The distinction between active acquiescence (in
relation to which the uncommunicated subjective intentions
of the wronged parent is normally irrelevant) and passive
acquiescence (in relation to which such subjective intention
is relevant) has influenced the later decisions of the Court
of Appeal in this field. In In to A.Z. (A Minor) (supra)
Sir Michael Kerr (at p. 689) saw that the question of
acquiescence depended not on the wronged parent’s subjective
state of mind but on his conduct, viewed objectively. Sir
Donald Nicholls: V.- C. (at p. 691) treated the relevant
question as being an objective ‘ one, viz. whether in all
circumstances the wronged parent “has conducted himself in a
way that would be inconsistent with him later seeking a
summary order for the child’s return”, an approach also
adopted by Butler-Sloss L.J.. That same test was applied by
Waite L.J. in In re S. (Minors) (supra). In that case
Hoffmann L.J. (at p. 836) indicated that the distinction
between active and passive acquiescence might have to be
reconsidered in the future. Neill L.J. said that active and
passive acquiescence must not be “allowed to become rigid
categories or substituted for the general term ‘acquiesced’
in the Convention.” He said that “the court is primarily
concerned, not with the question of the other parent’s
perception of the applicant’s conduct, but with the question
whether the contestant acquiesced in fact. However,
following In re A. (Minors) [1992] Fam. 106 he recognized
that there cam be cases where the wronged parent has made an
unambiguous statement which viewed objectively shows that
he is agreeing to the retention of the children in which
case such statement “is sufficient and conclusive evidence
of acquiescence.”
025 In In re R. [1995] 1 F.L.R. 716, Millett L.J., at p.
733F, said:
Acquiescence is a question of fact. It is
usually to be inferred from conduct; but it
may, of course, be evidenced by statements in
clear and unambiguous terms to the relevant
effect, But the authorities show that nothing
less will do.”
026 My Lords, this short and necessarily inadequate survey
of the Court of Appeal decisions is sufficient to show that
the existing authorities do not justify the bald proposition
of law formulated and applied by the Court of Appeal in the
present case. The fact that there has been some active
conduct indicating possible acquiescence does not, on any
view, justify ignoring the subjective intentions of the
wronged parent. Even on the test laid down in In re A.
(Minors) [1992], it is only where the wronged parent has
said or done something which is clearly and unequivocally
inconsistent with the summary return of the child that his
actual subjective intentions are to be disregarded. The
test applied by the Court of Appeal in the present case, and
the conclusions reached by it, suggest that evidence of the
wronged parent’s actual intentions are irrelevant or seldom
of any weight when there has been positive action of any
kind by the wronged parent. The authorities do not support
that proposition.
027 However, I do not think it desirable to decide this
appeal on that narrow ground. The authorities disclose a
variety of approaches to meaning of the word “acquiescence~
in Article 13 and it is desirable that your Lordships should
attempt to state the principles to be adopted. There are
three related questions which have to be considered, viz. –
1. Does “acquiescence in Article 13 connote the
actual state of mind of the wronged parent or the state of
his mind as it is perceived to be by the other parent having
regard only to the outward behaviour of the wronged parent?
2. I acquiescence a question of fast or of law?
3. If acquiescence is a subjective question of fact,
are there circumstances in which the wronged parent is
precluded from demonstrating his true intentions?
Is acquiescence subjective or or objective?
028 In English law, the concept of acquiescence occurs in
many different contexts: waiver, election, laches,
estoppel, etc. As Hoffman L.J. demonstrated in In re S.
(Minors) (supra) what constitutes acquiescence under English
law varies according to the context in which it is found.
But in English law acquiescence by one party nominally
depends upon his outward actions which must be known to the
other party if the latter seeks to rely on them. As between
two parties, the outward acts of one party, known to the
other, which objectively viewed demonstrate consent by the
former to a particular state of affairs will constitute
acquiescence. It is this English concept of acquiescence
which is reflected in references in the authorities on
Article 13 to the circumstances having to be viewed
objectively and in the distinction between active and
passive acquiescence.
029 In my view these English law concepts have no direct
application to the proper conduction of Article 13 of the
Convention. An international Convention, expressed in
different languages and intended to apply to a wide range of
differing legal systems, cannot be construed differently in
different jurisdictions. The Convention must have the same
meaning and effect under the laws of all contracting states.
I would therefore reject any construction of Article 13 that
reflects purely English law rules as to the meaning of the
word acquiescence. I would also deplore attempts to
introduce special rules of law applicable in England alone
(such as the distinction between active and passive
acquiescence) which are not to be found in the Convention
itself or in the general law of ail developed nations.
030 What then does Article 13 mean by “acquiescence”? In
my view, Article 13 is looking to the subjective state of
mind of the wronged parent. Has he in fact consented to
the continued presence of the children in the jurisdiction
to which they have been abducted? This is the approach
adopted by Neill L.J. in In re S. (Minors) (supra) and by
Millet L.J. in In re R. (supra). In my judgment it accords
with the ordinary meaning of the word acquiescence in this
context. In ordinary litigation between two parties it is
the facts known to both parties which are relevant. But in
ordinary speech a person would not be said to have consented
or acquiesced if that was not in fact his state of mind
whether communicated or not.
031 I am encouraged to find that this is also the view
reflected in decisions in other jurisdictions. In the French
Cour de Cassation Case No. 228 of 16 July 1992 the court,
whilst accepting that acquiescence could be inferred from
conduct, held that acquiescence could not be inferred simply
from the wronged parent having concurred in a temporary
arrangement win a view to arriving at an amicable solution:
the court was looking to the actual intention of the parent.
The District Court of Massachusetts in Wanninger v.
Wanninger (D.Mass. 1994) 850 F.Supp. 78 concentrated on the
actual intention of the wronged German parent despite his
visiting the mother in the U.S.A. (to which the children had
been abducted) to seek a reconciliation. In Friedrich v
Friedrich (6th Cir. 1996) 78 F.3d 1060 the Court of Appeals
of the 6th circuit adopted a similar approach.
032 In my judgment, in the ordinary case, the court has to
determine whether in all the circumstances of the case the
wronged parent has, in fact, gone along with the wrongful
abduction. Acquiescence is a question of the actual
subjective intention of the wronged parent, not of the
outside world’s perception of his intentions.
Is acquiescence a question of fact or law?
033 Once it is established that the question of
acquiescence depends upon the subjective intentions of the
wronged parent, it is clear that the question is a pure
question of fact to be determined by the trial judge on the,
perhaps limited, material before him.
034 In the process of fact-finding operation, the judge,
as a matter of ordinary judicial common sense, is likely to
attach more weight to the express words or conduct of the
wronged parent then to his subsequent evidence as to his
state of mind. In reaching conclusions of fact, judges
always, and rightly, pay more attention to outward conduct
than to possibly self-serving evidence of undisclosed
intention. But in so doing the judge is finding the actual
facts. He can infer the actual subjective intention from the
outward and visible acts of He wronged parents. That is
quite a different matter from imputing to the wronged parent
an intention which he did not, in fact, possess.
035 Although each case will depend on its own
circumstances, I would suggest judges should slow to infer
an intention to acquiesce from attempt, by the wronged
parent to effect a reconciliation or to reach an agreed
voluntary return of the abducted child. The Convention
places weight on the desirability of negotiating a voluntary
return of the child: see Article 7(c) and ArticLe 10. I
disagree with the Footnote to the judgment of Waite L.J. if
it is intended to provide guidance to judges in their
fact-finding role. Attempts to produce a resolution of
problems by negotiation or through religious or other
advisers do not, to my mind, normally connote an intention
to accept the status quo if attempts fail. It is for the
judge, in all circumstances of the case, to attache such
weight as he thinks fit to such factors in reaching his
finding as to the state of mind of the wronged parent. This
the approach adopted by the French Cour de Cassation in the
case to which I have referred.
036 Finely, it should always be born in mind that under
Article 13 the burden of proving that the the wronged parent
has consented to or acquiesced in the abduction is on the
abducting parent who is resisting the summary return of the
child. This placing of the burden of proof on the abducting
is designed to ensure that the underlying purpose of the
Convention is carried out, viz., the child is to be
summarily returned to its country of habitual residence
unless the abductor can prove the the other parent has in
effect consented to the removal of the child.
The exception
037 It is a feature of all developed systems of law that
there are circumstances in which one party, A, has so
conducted himself as to mislead the other party, B, as to
the true state of the facts. In such a case A Is not
allowed subsequently to assert the true facts as against B.
In English law, this is typically represented by the law of
estoppel but I am not suggest that the rules of English law
as to estoppel should be imported into the Convention. What
is important is the general principle to be found in all
developed systems of law.
038 It follows that there may be cases in which the
wronged parent has so conducted himself as to lead the
abducting parent to believe that the wronged parent is not
going to insist on the summary return of the child. Thus the
wronged parent may sign a formal agreement that the child is
to remain in the county to which he has been abducted.
Again, he may take an active part in proceedings in the
country to which the child has been abducted to determine
the long term future of the child. No developed system of
justice would permit the wronged parent in such
circumstances to go back on the stance which he has, to the
knowledge of the other parent, unequivocally adopted: to do
so would be unjust.
039 Therefore in my judgment there are cases (of which In
re A. Z. (A Minor) (supra) is one) in which the wronged
parent, knowing of his rights, has so conducted himself
vis-a-vis the other parent and the children that he cannot
be heard to go back on what he has done and seek to persuade
the judge that, all along, he has secretly intended to claim
the summary return of the children. However in my judgment
these will be strictly exceptional cases. In the ordinary
case behaviour of that kind will be likely to lead the judge
to a finding that the actual intention of the wronged parent
was indeed to acquiesce in the wrongful removal. It is only
in cases where the judge is satisfied that the wronged
parent did not, in fact, acquiesce but his outward behaviour
demonstrated the contrary that this exceptional case arises.
040 My Lords, in my judgment the exceptional circumstances
can only arise when the words or action of the wronged
parent show clearly and unequivocally that the wronged
parent is not insisting on the summary return of the child:
they must be wholly inconsistent with a request for the
summary return of the child. Such clear and unequivocal
conduct is not normally to be found in hasty remarks or
letters written by a parent who has recently suffered the
trauma of the removal of his children. Still less is it to
be found in a request for access showing the wronged
parent’s desire to preserve contact with the child, in
negotiations for the voluntary return of the child, or in
the parent pursing the dictates of his religious beliefs.
041 It may be objected that to admit the existence of such
exceptional cases in which the actual subjective intentions
of the wronged parent do not prevail is to reintroduce by
the back door the distinction between active and passive
acquiescence which I have rejected. It is true that there
are features common to both approaches. But in my judgment
the two concepts are not the same. The concept of active
and passive acquiescence has led to the approach that
acquiescence has to be tested objectively whereas in my view
it is a question of subjective intention. The concept of
active and passive acquiescence has also led, as in the
present case, to a wronged parent who has not, in fact,
acquiesced being held to have acquiesced because he has
taken some positive action. without any analysis of what he
has in fact done. The important factor to emphasise is that
the wronged parent who has in fact never acquiesced is not
to lose his right to the summary return of his children
except by words or actions which unequivocally demonstrate
that he was not insisting on summary return of the child.
Summary
042 To bring these strands together, in my view the
applicable principles are as follows:
1. For purposes of Article 13 of the Convention, the
question whether the wronged parent has “acquiesced” in the
removal or retention of the child depends upon his actual
state of mind. As Neill L.J. said in In re S. (Minors) “the
court is primarily concerned, not with the question of the
other parent’s perception of the applicant’s conduct, but
with the question whether the applicant acquiesced in fact.”
2. The subjective intention of the wronged parent is
a question of fact for the trial judge to determine in all
circumstances of the case, the burden of proof being on the
abducting parent.
3. The trial judge, in reaching his decision on the
question of fact, will no doubt be inclined to attach more
right to the contemporaneous words and actions of the
wronged parent than to his bare assertions in evidence of
his intention. But that is a question of the right to be
attached to evidence and is not a question of law.
4. There is only one exception. Where the words or
actions of the wronged parent clearly and unequivocally show
and have led the other parent to believe that the wronged
parent is not asserting or going to assert his right to the
summary return of the child and are inconsistent with such
return, justice requires that the wronged parent be held to
have acquiesced.
Conclusion
043 Applying that approach to the present case, the judge
found that in fact the father never acquiesced in the
retention of the children in this country. The requirements
of his faith required him to pursue his claims in the Beth
Din. The question therefore is whether this was one of
those exceptional cases when, by his actions, the father has
led the mother reasonably to believe that, contrary to the
father’s true intentions, he was not seeking the summary
return of the children.
044 In order to bring th is case within the exception, the
mother would have to show that the father’s action were
clearly and unequivocally inconsistent with his pursuit of
his summary remedy under the Convention. The facts are from
from satisfying that test. As to the father’s recourse to
the Beth Din, the mother as an Orthodox Jew must have known
of the religious requirement to go first to the Beth Din
before resorting to other courts with the consent of the
Beth Din. Moreover, the exact nature of the proceedings in
the Beth Din were not demonstrated. If (improbably) the
Beth Din proceedings related only to the marriage and not
the children, there is no inconsistency between the Beth Din
proceedings and the right to the summary return of the
children: they would be concerned with different matters.
If, as was not proved, the Beth Din proceedings related to
the children, they do not disclose anything other than that
the father, as his faith required, was seeking to secure the
decision of his religious court in Israel as to the future
of the children. There is nothing inconsistent in a wronged
father pursuing remedies in the courts of habitual residence
(whether religious or civil) and subsequent recourse to the
Convention for the summary return of the children by the
courts of the country to which the child has been abducted.
045 As to the father’s suggestion of access in Israel over
Passover coupled with an agreement to return them to the
United Kingdom, this proposal was as consistent with the
father wishing to retain his contact with the children as
with the decision by the father not to pursue the summary
remedy for their return. It falls far short of any clear
and unequivocal indication that the father is not pursuing
remedies under the Convention.
046 The judge inadvertently misdirected himself in
relation to the letter wrongly dated 25 March 1996.
However, in my judgment this does not affect the validity of
his conclusion. He reached the only possible conclusion,
bearing in mind his finding that the father never in fact
acquiesced in the removal of the children. In my judgment,
for the reasons I have given the Court of Appeal misdirected
itself in the law. It is for those reasons that I joined
with our Lordships in allowing the appeal and ordering the
summary return of the children to Israel.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have the advantage of reading a draft of the speech
of my noble and learned friend Lord Browne-Wilkinson. For
the reasons he has given, I too would allow this appeal.
LORD MUSTILL
My Lords,
I have the advantage of reading a draft of the speech
of my noble and learned friend Lord Browne-Wilkinson. For
the reasons he has given, I too would allow this appeal.
LORD HOFFMANN
My Lords,
I have the advantage of reading a draft of the speech
of my noble and learned friend Lord Browne-Wilkinson. For
the reasons he has given, I too would allow this appeal.
LORD CLYDE
My Lords,
I have the advantage of reading a draft of the speech
of my noble and learned friend Lord Browne-Wilkinson. For
the reasons he has given, I too would allow this appeal.