UK – IN RE S 2 – 1994 (Return ordered) (Non Convention case). The mother took the youngest of three kids to England with out the fathers knowledge. The father applied for their return under Children’s Act of 1989. (Pakistan was not a signatory of the Hague Convention) The court decided that the children should go straight back to Pakistan. The mother appealed. The Court of Appeals held that “it was settled law that the court must apply the philosophy of the Hague Convention in non-Convention cases” the appeal was dismissed.
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UK – IN RE S 2 – 1994 (1994) (Return ordered on appeal)(Acquiescence) (Abduction) Mother took children to England. Lower court ordered their return. Mother appealed, appeal was dismissed.
In re S. (Minors) (Abduction: Wrongful Retention)[1994] F.L.R. 70
1 International Abduction [UK 1994]
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ORIGINATING SUMMONS
001 By an originating summons dated 11 June 1993 the
father, S., applied for an order that his two children be
returned to the jurisdiction of Israel on the ground that
the mother was wrongfully retaining the children in England
in breach of the joint custodial rights vested in him under
Israeli law, contrary to article 3 of the Hague Convention
on the CIvil Aspects of International Child Abduction 1980,
as incorporated by the Child Abduction and Custody Act 1985.
The hearing took place in chambers and the judgment is
reported with the leave of the judge.
The facts are stated in the judgment.
James Turner for the father.
Frank Moat for the Mother.
Cuv. adv. vult.
<* page 71> 14 Jul 1993
Wall J. read the following judgment.
002 This case concerns the concept of wrongful retention
under article 3 of the Convention on <* page 72> the Civil
Aspects of International Child Abduction signed at the Hague
on 25 October 1980 (“the Convention”) which is incorporated
into the law of England by section I of the Child Abduction
and Custody Act 1985. The points for decision can be
formulated in the following way. Are children unlawfully
retained under article 3 when (1) they are brought to this
country from their country of habitual residence by
agreement between their parents with the intention that they
will reside here for a fixed period; (2) both parents have
equal parental rights and responsibilities under the law of
the state of their habitual residence; (3) before the expiry
of that fixed period the relationship between (he parents
comes to end and they separate; (4) one party returns to the
country of his habitual residence and issues an application
under the Hague Convention seeking the peremptory return of
the children to that country; (5) The other party remains in
England and asserts chat both she and the children have
become habitually resident here?
003 In the instant case both parties are Israeli citizens.
They were married in Israel on 5 August 1985 and have two
daughters, both born in Israel and now aged, respectively,
nearly five and 15 months. Both parties had lived in Israel
all their lives and neither child had been in EngLand prior
to September 1992.
004 With one important exception, the relevant facts are
not in dispute. Both parties are scientists. In 1992 the
father was employed by the state of Israel in a research
centre near Tel Aviv. During the course of that year he was
offered the opportunity to come to England on sabbatical to
carry out a research project. Paragraph 2 of his affidavit
in these proceedings, sworn on 29 June, states: “I discussed
the sabbatical with [the mother] and we agreed we would
travel to England with the children for a period of one
year.”
005 The father’s case is that after this agreement had
been reached the mother also secured a post in a laboratory
in a hospital in the same area in order to pursue research.
He exhibits to his affidavit two letters from the British
Council, both dated 5 August 1992, which, so far as their
terms and conditions are concerned and apart from essential
differences in the nature of the scholarships specified in
their opening paragraphs, are in identical terms. That to
the father offers him a scholarship jointly funded by the
Foreign and Commonwealth Office and the Anglo-Israel
Association at the opto-electronic research centre in a
university for a period of not more than 12 months starting
from about October 1992. That to the mother offers her a
jointly funded scholarship at the same university to study
molecular aspects of problems in the central nervous system
for a period of not more than 12 months, starting also in
about October 1992.
006 The father was to be paid a stipend of œ3,000 over six
months. The mother was to receive a stipend of œ800 a month
and fees not exceeding œ3,000, plus the cost of travel from
Israel at the beginning of the scholarship and back to
Israel at its termination. The common parts of both letters
contain the following relevant sentence:
“The purpose of the scholarship is that you
should carry out in Britain the plan of studies
agreed between yourself and the British <* page
73> Council and should then return to resume your
career in your own country.”
007 Each party also agreed to remain in Britain, not to
accept any paid employment and to return to Israel at the
conclusion of the scholarship.
008 The mother’s case is that in 1992 she was finishing
her Ph.D. thesis in Israel and that both she and the father
were, in parallel, looking for research posts which would
suit them. She says the reasons they decided to travel to
England rather than anywhere else was because both found
suitable posts with adequate finance offered by the British
Council. The mother says that it was important to her to
have at least two years attached to the university because
of the nature of her work — research into multiple
scleroses — and that, accordingly, she and the father
agreed “that we should stay in England for a period of at
least two years with an optional extension.” She says that
the father, accordingly, inquired of his employers about
leave of absence without pay following the sabbatical year
and was toLd this was likely to be agreed.
009 The mother exhibits to her affidavit a letter from the
professor of clinical biochemistry at the university which
states that the mother started at the university in November
1992: “for a period of one to two years with an optional
extension.” The letter goes on to state the mother has a
research grant to support her work and expresses confidence
that she will continue to receive financial support for her
study.
010 I have, of course, not heard oral evidence but when
the case was opened to me Mr. Turner, for the father,
accepted that although the intention was that the family
would come over for one year, it was not beyond the realm of
possibility that they would have stayed longer. The parties
arranged for their apartment in Israel to be let until the
end of August 1993. The reason for the length of the
letting, I was told, was that a longer let would have given
the tenant different rights of occupation and I therefore
draw no inference one way or the other from the length of
the letting.
011 On 1 September 1992 the mother and the father arrived
in England with the children. They then rented a property
which, I was told by Mr. Moat, for the mother, was available
for six months but which could be extended to two years. On
a number of occasions between November 1992 and April 1993
the father returned to Israel dud to the terminal illness of
his father. On one of these visits, between 28 December 1992
and 6 January 1993, the mother and the children accompanied
him. On 22 April the father returned permanently to Israel
and his father died some eight days later, on 30 April 1993.
012 The father says that on 18 November 1992 when he
returned from one of his visits to Israel he noticed a
significant change in the mother’s attitude towards him and
he says that in December 1992 the mother asked him to leave
the house. It is common ground that he moved out on or about
24 January 1993 and went to live in alternative
accommodation in the same locality which allowed him
frequent contact with the children. On 11 April 1993 the
father returned from one of his visits to Israel. He says
that after that the mother refused to allow him to speak to
the children and later. changed her telephone number so that
<* page 74> he could not do so. He says he has not seen the
children properly since April 1993.
013 Also in April 1993 (the precise date is not clear from
the documentation) the father commenced proceedings for
divorce against the mother in Israel. I have not seen the
documents in those proceedings but it Is clear from an
expert opinion from an Israeli lawyer, Mr. Mordechai Shorer,
which the mother has produced in these proceedings, that
they allege that the mother has been unfaithful to the
father and was conducting a romantic relationship with
another man. The mother does not deal with this allegation
in her evidence and it is immaterial to the present
proceedings.
014 What may, however, be of significance is that the
mother has made an application in the Israeli divorce
proceedings for maintenance for the children; further that
on 16 June 1993 the rabbinical court in Rehovot accepted
jurisdiction to deal with the question of the custody of the
children and set 2 September 1993 as the date for the
consideration of that issue. The court took jurisdiction on
the basis that the habitual residence of the mother and the
father was in Israel: “The couple went for a study year to
the U.K. in order to return to Israel at the end of the
year.”
015 On 6 May 1993 the mother obtained ex parte interim
residence and prohibited steps orders under the Children Act
1989 in the county court. She says that she did this
following an incident to which the children’s nanny deposes
in an affidavit sworn on 13 june 1993, the effect of which
was that the mother thereafter feared the father was
attempting, unilaterally, to remove the children back t6
Israel.
016 Also on 6 May 1993 the father wrote to the mother from
Israel by registered post. It is a very formal letter in the
following terms:
“Re demand to return the girls to Israel
“Dear Madam,
“Further to our many prior conversations in the
above matter hereby repeat and demand your
immediate return to Israel, of the girls. As you
know, the stay was within the framework of my
sabbatical. With my return to Israel you are
required by law to return with our daughters to
Israel, which is our regular and permanent place
of residence. Your failure to return the girls to
Israel constitutes a breach of my custody rights
over the girls and the breach of my rights of
visitation with the girls. Furthermore. I demand
that you permit me to have telephone contact with
the girls in an orderly fashion until their
return to Israel. The fact that you prevent me
from talking with the girls constitutes
mistreatment and is damaging to the girls, which
is liable to cause them serious emotional damage.
I hope that you will act immediately in
accordance with the above. I hope that the
conflict between us will not cause you to
continue to harm the best interests of the girls
and to violate the law.”
017 It does not appear that the mother replied to this
letter and on 11 June 1993 the originating summons currently
before me was issued by the father. It seeks, inter alia.
the immediate return of the children to <* page 75> Israel
on the ground that the mother is wrongfully retaining them
in England in breach of the fathers rights of custody.
018 The mother’s case on the facts is that the agreement
between herself and the father is, as I have stated, that
they would stay in England for a period of at least two
years with an optional extension. She makes it clear that
she regards the marriage as irretrievably broken down and
expresses her clear wish to remain in England with the
children. She says that she has settled and made a life in
England. She makes a number of allegations against the
father, which, like the father’s allegations against the
mother, are immaterial for present purposes.
019 The father’s case on the facts as outlined is that at
all material times the habitual residence of the children
remained that of Israel and that the mother’s unilateral
decision to retain the children in England constitutes a
breach of his custody rights under Israeli law. He submits
that but for the mother’s wrongful retention of the
children, including her refusal to allow him to see them, he
would be exercising those rights of custody. He therefore
submits that the children have been wrongfully retained by
the mother in England within article 3 of the Convention and
that the court should order their immediate return to
Israel.
020 The mother takes a number of points in answer to the
originating summons but her main contention is that the
Convention does not apply because her retention of the
children in England is not wrongful. She says, as I have
already stated, that, pursuant to the agreement originally
made between the parties, she is entitled to remain in
England with the children for, at the very least, a year
from September 1992 and that her continued presence here
with the children cannot be said to be wrongful before that
period has elapsed. Alternatively, she says that the
Convention does not apply because the father has no rights
of custody under the law of Israel. In the further
alternative, she says the Convention does not apply because
the children are now habitually resident in England. If,
however, contrary to those submissions, the Convention does
apply she seeks to rely on the provisions of article 13(a),
“Acquiescence,” and 13(b), “Intolerable Situation.”
021 To the mother’s primary argument the father’s response
is that it was a condition precedent to the original
agreement that the parties would bring the children to
England as a family and remain here as such. Thus (he
submits) the breakdown of the marriage and the refusal of
the mother to contemplate a return to Israel vitiates the
agreement and constitutes a wrongful retention within
article 3.
Points arising in the case
022 1. Does the mother’s action in refusing to return the
children to Israel breach the father’s rights at all, given
the law of Israel as set out in the opinion of the Israeli
expert. 2. Can there be a wrongful retention within article
3 when there has been agreement for the children to remain
within the jurisdiction for a fixed term and one party
requires the return of the children to the country of their
habitual residence before that term has elapsed? 3. Has the
habitual residence of the children altered since they came
to England in September 1992? 4. If the Convention applies
is the case within either article 13(a) or (b) on the facts?
<* page 76>
The purpose of the Convention
023 It is trite law but always important to remember what
the Convention is designed to achieve. Article 1, which is
not enacted into the domestic law but to which I am entitled
to have regard, states that the objects of the Convention
are, firstly, to ensure the prompt return of children
wrongfully removed to or retained in any contracting state;
and, secondly, to ensure that rights of custody and access
under the law of one contracting state are effectively
respected in the other contracting states.
024 In the instant case, therefore, as in any other case
to which articles 3 and 12 are said to apply, I am not
determining the merits of residence or contact issues as
between the parties. I am not determining where or with whom
the children should live. I have to decide firstly whether
or not the Convention applies and secondly, if it does,
whether or not the children should be promptly returned to
Israel in order for the courts of that country to decide
with whom they should reside and where.
Wrongful retention
025 The decision of the House of Lords in In re H.
(Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476 makes
it clear that to establish that a child has been wrongfully
retained within article 3 the complaining parent must prove
an event occurring on the specific occasion which
constitutes the act of wrongful retention. Wrongful
retention under the Convention is not a continuing state of
affairs. Thus in the instant case the father must point to a
specific event at a specific point in time which constitutes
the act of wrongful retention.
026 Wrongful retention must in every case be an issue of
fact. The mother’s case on this point is that since
wrongful retention has to be related to a specific point in
time it cannot be said that she is wrongfully retaining the
children at any point prior, at the very earliest, to 1
September 1993. Thus she asserts that by issuing his
originating summons on 11 July the father has “jumped the
gun” and the summons must inevitably fall to be dismissed.
This proposition is at the heart of The case and must be
examined carefully. I do so first by looking at the
agreement between the parties.
027 There is an issue between the mother and the father as
to precisely what the agreement between them was. For
reasons which will be apparent later in this judgment, I do
not think it necessary to express a concluded view on the
precise terms of the agreement. It is sufficient for
present purposes and for the way in which the argument for
the mother was developed for me to hold that, on any view,
the agreement was that the family would remain in England
for one year from 1 September 1992. Both parties’ contracts
were to that effect and I was told that the the mother’s
immigration position is that she has the right to remain in
England only until 31 October 1993, although she can apply
for an extension. For the purposes of this judgment,
therefore, I find as a fact that it was agreed between the
parents that they would come to England for a period of at
least one year.
<* page 77>
The law of the state of Israel
028 Exhibited to the father’s affidavit is an extract from
the Israeli Capacity and Guardianship Law in an authorised
translation from Hebrew prepared at the Ministry of Justice.
Paragraphs 14 and 15 of chapter 2, “Parents and Minor
Children,” read as follows:
“14. Parents shall be the natural guardians of
their minor children.
“15. The guardianship of the parents shall
include the duty and the right to take care of
the needs of the minor, including his education,
studies, vocational and occupational training and
work, and to preserve, manage and develop his
property; it shall also include the right to the
custody of the minor; to determine his place of
residence and the authority to act on his
behalf.”
Paragraphs 18 and 19 read as follows:.
“18. In any matter within the scope of their
guardianship the parents shall act in agreement.
The consent of one of them to an act of the other
may be given in advance or subsequently,
expressly or by implication, for a particular
matter or generally. Either parent shall be
presumed to have agreed to an act of the other
unless the contrary be proved. In a matter
admitting of no delay, either parent may act on
his own.
“19. Decision of the court. Where the parents
have reached no agreement in a matter relating to
the property of the minor, either of them may
apply to the court, which shall decide in the
matter. Where the parents have reached no
agreement in any other matter within the scope of
their guardianship, they may together apply to
that court, and the court, if it does not succeed
in bringing about agreement between them and if
it deems it appropriate to decide in the matter,
shall either decide it itself or refer the matter
for decision to whom it may think fit.”
029 Mr. Moat, for the mother, produced an expert opinion
written by an Israeli lawyer, Mr. Shorer, the relevant
portion of which reads as follows. Having summarised the
provisions of paragraphs, 15 to 19, which I have just read,
he goes on to say this:
“If the parents are living apart, as is the case
with the the [S] family, article 24 of the
Competency Law stipulates as follows: ‘In the
case of the parents or a child who are living
apart — whether their marriage has been
annulled, abandoned or broken off, or whether it
still exists — they may agree which of them will
have the guardianship of the child, whether
wholly or in part, which of them will maintain
the child and what the rights are of the parent
who does not maintain the child to have access to
it. Such an agreement requires the endorsement of
the court, and its ruling will be tantamount to a
ruling of a court of law.’ If the parents cannot
reach an agreement as detailed in article 24, or
if they reach an agreement but the agreement is
not carried out, the court may — pursuant to the
provisions of article 25 … stipulate the
matters referred to in article 24 in what it
perceives to be in the best interests of the.
child — except that children up to the age of
six must remain with <* page 78> their mother
unless there are special reasons for ordering
otherwise. As far as the special reasons are
concerned, they could include violence by the
mother towards the child, mental illness in the
mother, or if she is a drug addict or a
prostitute, with no relationship with one man. In
practice, the courts refer the matter to the
local social services in the place where the
children are located to investigate the
qualifications of the parents and submit their
findings to the court. In this way the court is
able to obtain full details of the children’s
situation from professionals prior to making a
decision. If we apply the provisions of the
Competency Law to the [S] family it is evident
there are two daughters, both of them below the
age of 6 and one of them aged 1. It can safely be
assumed that the district court, pursuant to the
provisions of article 25 of the Competency Law,
would stipulate that custody should go to Mrs.
[S.]. Further to what has been stated above it is
clear that the rabbinical court would give an
identical ruling to the district court, acting
pursuant to the provisions of the Competency
Law.”
030 Mr. Shorer then goes on in the following paragraphs of
his opinion to set out the stipulations of the religious law
and, pursuant to his analysis, states that these reach a
similar conclusion. I do not, therefore, propose to read the
balance of his opinion.
031 Mr. Moat sought to persuade me on the basis of this
opinion that the mother’s action in refusing to return the
children to Israel could not constitute a breach of the
father’s rights of custody since he had no such rights.
Accordingly, it was argued, since the outcome of any
application to the court in Israel would be that the custody
would be awarded to the mother she, effectively, had sole
rights of custody and, as a consequence, there was no breach
of the father’s rights.
032 In my judgment, this argument confuses two concepts,
the rights of custody under paragraphs 14 and 15 of the Code
and the practice of the court in resolving disputes between
patents when they are unable to agree. The mere fact that in
the event of a dispute between the parents the Israeli court
would normally award custody of girls of the ages of these
two daughters to the mother does not, in my judgment, affect
the father’s rights under paragraphs 14 and 15 of the
Israeli Code. Thus, the mother’s actions, in my judgment, in
refusing to return the children to Israel and in denying the
father contact with them — if that is what she has done —
are capable of constituting breaches of his rights of
custody under paragraph 15.
Is the mother’s action in retaining the children in England
in breach of the father’s rights of custody, given the
agreement that the children will remain in England, in any
event for one year?
033 I have found this the most difficult aspect of the
case. I was initially attracted to the proposition that
where parents agree that children shall remain in England
for a specified period there cannot be a wrongful retention
until that period has elapsed. The mere fact that the
relationship between the parents has come to an end cannot
entitle one parent unilaterally to resile from that which
has been agreed between them. The example which springs to
mind is an agreement that children should visit <* page 79>
a foreign country for a specific time, such as a school
holiday. Clearly, a parent in such circumstances could not
unilaterally change his mind and demand the return of the
children before the term of the contract had expired.
034 Thus, if the mother’s case before me were that she
intended at the expiry of one year to return the children to
Israel or were she to establish for the purpose or this
argument that the agreement between them was that the
children should be returned after two years and that she
intended to return the children at the expiry of that term
then it seems to me she would have a complete defence to the
originating summons, either because her retention of the
children was not wrongful or, under article 13(a), because
the father had consented not merely to the removal of the
children but, by necessary implication, had consented to
their retention in England for a fixed term.
035 Mr. Turner accepted, as of course, he had to, that the
removal of the children to England was not in breach of the
father’s rights and that he consented to it. Indeed, he
submitted that the father was, in effect, exercising his
rights by bringing the children to England with the mother.
Mr. Turner submits, however, that the mother’s refusal now
to return the children at any point in the future and
irrespective of the original agreement constitutes a breach
of the father’s rights even though she is retaining the
children in England within the period originally agreed.
036 The question, in my judgment, thus becomes does the
fact that the mother has stated her intention not to return
the children to Israel at all mean that there is a wrongful
retention as at the date that intention is either formed or
when it is communicated to the father, even though the
period in which she is entitled to retain the children in
England has not yet expired?
037 In the absence of authority, my answer to this
question might well have been “No.” An intention not to
return after a given date, which intention is capable of
being changed should not, in principle, render wrongful what
has been agreed — namely retention up to the date in
question. However, on reflection, I have come to the
conclusion that both the terms of article 3 and In re A.Z.
(A Minor) (Abduction: Acquiescence) [1993] 1 F.L.R. 682
require a different answer.
038 Mr. Turner argues that the terms of article 3 are, in
a sense, exclusive. Provided its terms are fulfilled the
wrongful retention is established and extraneous factors do
not fall to be considered. Thus, he says here that the
mother’s decision not to return the children to the state of
Israel is a breach of the father’s rights of custody, that
the children are habitually resident in Israel
(notwithstanding their presence in England) and that at the
time the mother announced her intention not to return them
the father would have been exercising his rights but for her
refusal to allow him to see them and her expressed intention
not to return the children to Israel. He thus says that the
terms of article 3 are fulfilled and the court is thus bound
to order return under article 12.
039 Mr. Turner further submits that article 13(a) cannot
apply because, although there was an agreement to the
removal into England, the Father plainly does not agree with
the mother’s retention of the children in England and since
retention under the Convention refers to a fixed point <*
page 80> in time and since, in the context of this case,
that retention can be dated by the mother’s announcement of
her decision not to return the children, article 13(a)
cannot apply since the father has neither agreed, nor by his
prompt action in taking proceedings, acquiesced.
040 In In re A.Z. the child was habitually resident in
Germany. Mother brought him to England on a temporary basis
with the father’s agreement and then handed him over to an
aunt. The father agreed that the child should remain with
the aunt until he, the father, was able to come to England
at Christmas. On 19 December the aunt applied ex parte to
the county court for residence add prohibited steps orders
which were granted. Booth J. found that there were two
points in time when the child was wrongfully retained in
England. She said:
“First, there is the question whether there was
there a wrongful retention. There are two points
of time, in my judgment, when Z. was retained in
this country wrongfully. Wrongful retention for
the purpose of the Convention means retention ‘in
breach of the rights of custody attributed to a
person, either jointly or alone, under the law of
the state in which the child was habitually
resident immediately before the removal or
retention.’ The rights of custody, according to
the German civil code, vest in the mother and
father, they being married. The first point of
time when Z’s retention in this country was, in
my judgment, wrongful was at the point that the
mother decided not to return to Germany; that is,
in November 1991. That was a unilateral decision
taken by her. It was in breach of the father’s
custody rights because she did not intend to
return to Germany, in breach of the agreement
that they had previously come to. The mother
decided, without consultation with the father,
that Z should stay with [the aunt and her
husband]. The mother says that had the father
come over to this country and at that point
required or demanded or asked that Z. should go
back to Germany with him, she would not have
objected and neither would any of her family. But
it seems, to me that by her unilateral decision
to keep the child in this country herself and not
return there was a wrongful retention. The
second, and perhaps the stronger, of the two
points of time when the retention can be
considered to be wrongful, was on 19 December
1991 when, on the ex parte application to the
Oxford County Court, the aunt obtained, first,
the residence order (that Z. should reside with
her until 17 January) and, secondly, the
prohibited steps order (that he should not be
removed from the jurisdiction). It was a
unilateral decision to make that application and
it was not taken in consultation with the father.
The most that the father had done was to agree
that until he could come to this country Z.
should remain with [the aunt and her husband] and
not live with the mother. He had agreed to
nothing else. He certainly had not been asked,
nor had he agreed, to the prohibited steps order
being obtained.”
041 In the Court of Appeal Sir Michael Kerr commented on
this passage in the following way [1993] 1 F.L.R. 692, 689:
“Without deciding the point, particularly since
it has not been pressed in argument, I am
doubtful about the first ground on which <* page
81> the judge relied. It seems to me that [he
uncommunicated decision which the mother took in
her own mind in November 1991 not to return the
boy on 21 January 1992 could hardly constitute a
wrongful retention in November 1991. It was at
most an uncommunicated intention to retain him in
the future from which she could still have
resiled. But on balance I am driven to agree with
the judge on the second ground, which she
recognised to be the stronger one, although it
seems odd that an otherwise lawful and
unconcealed application to a court can constitute
a wrongful retention. However, the unusual nature
of this act as constituting a wrongful retention
appears to me to have some relevance to the
question of acquiescence, as mentioned below.”
042 It is to be noted that, at p. 684, Butler-Sloss L.J.
took the view that Booth J. was “entirely justified in her
conclusions under article 13 that the child was wrongfully
retained.” I query whether or not the report has misprinted
article 13 for article 3.
043 I confess that I initially shared the misgivings
expressed by Sir Michalel Kerr. If a parent, pursuant to an
agreement that a child may live with him for a given period,
fears unilateral action by the other parent it seems to me
very hard to suggest that an application to the court
designed to protect the presence of the child for the agreed
period constitutes an act of wrongful retention. Thus, if
the mother in the instant case applied for prohibited steps
and residence orders for the sole purpose or protecting the
presence of the children within the jurisdiction until 1
September I would find it difficult to hold that to be an
act of wrongful retention, alternatively, if it was, that
the father had not consented to the retention until 1
September under article 13(a).
044 However, it seems to me that where a parent, as here,
announces as part of her case that she does not intend to
return the children to Israel at all she can no longer
himself rely on the father’s agreement to the limited period
of removal or retention as protecting either under article 3
or under article 13(a). As Mr. Turner puts it, she cannot
have the benefit of the agreement without the burden.
Equally, as an issue of fact, it seem to me that the
decision which precedes the announcement, even if not
communicated to the father, must be capable itself of
constituting an act of wrongful retention.
045 I therefore find that, by announcing her intention not
to return the children to Israel at all and by asserting
that she and the children have acquired habitual residence
in England, the mother has wrongfully retained the children
in England as at the date of that announcement. On the
facts, of this case the statement in her affidavit that she
has settled and made a life in England is evidence of a
previous determination to retain the children in England,
which is capable of being fixed in time and which, whilst
there is no direct evidence of when it was formed, I fix in
time prior to the filing of the originating summons and upon
or shortly after receipt of the letter from the father of 6
May 1993.
046 It follows, in logic, that the father has neither
agreed in advance to the children remaining in England
beyond 1 September, nor, plainly, has he acquiesced. I
therefore find a wrongful retention within article 3.
<* page 82>
Habitual residence
047 I heard a great deal or argument on this point and was
referred to a number of the cases on it. I am, however,
satisfied that the issue can be resolved shortly. The
retention can of course only be wrongful if the children
were habitually resident in Israel immediately before they
were wrongfully retained in England, I am in no doubt at all
that the habitual residence of the children remains that of
Israel. Even if, which must be doubtful, the mother has
herself lost her habitual residence in Israel, it seems to
me plain that where both parents have equal rights of
custody no unilateral act by one of them can change the
habitual residence of the children, save by the agreement or
acquiescence over time of the other parent, or court order
determining rights of residence and custody. In my judgment4
the matter is concluded on this point by the observations of
Lord Donaldson of Lymington M.R. in In re J. (A Minor)
(Abduction: Custody Rights) [1990] 2 A.C 562, 572.
Article 13
048 Mr. Moat sought to argue on the basis of paragraph 16
of the mother’s affidavit that there was a grave risk that
to order the children’s return would expose them to physical
or psychological harm or otherwise place the children in an
intolerable situation. Paragraph 16 reads as follows:
“[The older daughter] is very well settled here.
She speaks fluent English with a nice British
accent. She has many friends at school and at
home. She is peaceful and enjoys going to school
and living in England. I am afraid that she will
get to Israel and will be exposed to bombs and
terror which is all put of life in Israel. She
will also have to serve in the Israeli army. My
biggest concern of all however is that my husband
will put my daughters into a very religious
boarding school. There are my many places like
this in Israel and children in those schools
appear to disappear from one or another of their
parents, all in the name of God. It is impossible
to trace them and even the Israeli police are
unable to help when such things happen. These
events happen in Israel from time to time and
there have been incidents when such things have
occurred following bitter marriage breakdowns.”
049 In my judgment, that paragraph does not even begin to
make a can under article 13(b) and is, moreover, in
contradiction to the evidence of the mother’s own expert,
which is, that the custody of children of the ages of these
is likely to be granted to the mother.
050 It follows, in my judgment, that the father has made
out his case under article 3, that none of the exceptions
under article 13 apply and that the children must be
returned “forthwith” under article 12. The children will of
course remain in their mother’s care until such time as the
court in Israel orders differently, if it does. Had I
discretion in the matter I would have ordered that the
children be returned to Israel not later than 2 September
1993. Whilst I have no power, as I understand it, to specify
what “forthwith” means, I hope that the father will
recognise that an orderly return of the children in their
mother’s care to Israel for <* page 83> the Israeli court to
decide their future is in their interests and that
peremptory action is likely to be unsettling for them. I
therefore hope that since the father has now succeeded in
establishing the point of principle upon which he brought
the originating summons the parties will negotiate a
civilised timetable for the children’s return to Israel,
pending any further decision by the Israeli court as to
where they are to live.
051 Order Accordingly. No order for costs save legal aid
taxation.
Leave to appeal
Solicitors: Mishcon de Reya; Christopher Green & Partners,
Southampton,
===========================================================
Thursday the 9th Day of September 1993
In the Court of Appeal, Appeal No FAFMI 93/0990/F
On Appeal from the High Court of Justice, Family Division,
Principal Registry, CA 114 of 1993
Before Mr. Registrar Adams, Registrar of Civil Appeals
Between
ES, Plaintiff
and
IS, Defendant
052 Upon reading the Notice of Consent dated the 8th
September 1993 signed by the solictors for the Plaintiff and
for the Defendant, by consent, IT IS ORDERED:
053 1. That the Defendant’s appeal from the order of the
Honourable Mr. Justice Wall dated the 14th day of July 1993
be dismissed.
054 2. That the costs of the Plaintiff and of the
Defendant be taxed in accordance with Regulation 107 of the
Civil Legal Aid (General) Regulations 1989.
By the Court.