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July 25, 2018

Wrongful removal of a child under the Hague Convention

Summary of a recent decision in the High Court.

MK v RP [2018] EWHC 1475 (Fam)

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1475.html

This is an interesting case concerning the interpretation of what is meant by ‘clear and unequivocal consent’ in cases of alleged child abduction and consideration of the defence under Article 13(b) where it  must be established that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Both parents were Israeli. The child, D was 6 years old at the time of the application. The parties agreed that prior to her removal D was habitually resident in Israel. The questions for the court were whether there had been a wrongful removal by D’s mother to the UK, the mother asserting that the father had consented to the child’s removal and whether, in any event, that to return the child to Israel would place the child in an intolerable situation.

The mother claimed that in 2013 the parties registered their divorce at the Rabbinical Court of Jerusalem and that there was an amendment to the divorce petition to allow her to relocate, should she re-marry, without needing to obtain the father’s consent. The mother then applied to the Rabbinical Court of Jerusalem in November 2017 for a declaration that she be permitted to leave the jurisdiction which was granted. The father disputed that the additional clause had been added to the divorce petition but in any event said that the agreement was unenforceable due to there being no jurisdiction over family matters by the Rabbinical Court. He further stated that he was not served with the November 2017 declaration and that the mother did not notify him when she left the country (a fact which was accepted by the mother).

Expert evidence as to the law and procedure in Israel was obtained and the judge accepted the expert view that both translations of the divorcee agreement obtained by each of the parties was unsatisfactory and that his own interpretation was that the paragraph relating to the ‘consent’ was poorly drafted. Furthermore he advised that under Israeli law the permission of the court in Israel is required to relocate a minor and that the Rabbinical Court had no jurisdiction to authorise the removal of a child from the jurisdiction of Israel.

Ultimately the judge concluded that the written divorce agreement itself did not provide the ‘clear and unambiguous consent’ required for an international relocation as asserted by the mother

It was also apparent that once the mother had left Israel she did not tell the father she had moved and he only discovered the information after he issued an application to the family court in the UK. In a subsequent letter to the court the mother asserted that the father would act violently towards her and the child if he were to be given details of the mother’s address and their precise whereabouts.

As to the Article 13(b) defence it was said on mother’s behalf that she and the child would be homeless if they returned to Israel as the mother had given up her tenancy when she relocated to London and was unable to live with family members with the child. Her case was that she and the child would return to destitution even though she said in her statement that if the child was to return to Israel she would be able to live with her parents. The Father also offered undertakings that he would not attend the airport when Mother and the children returned to Israel, would not support any proceedings for the mother’s punishment in respect of the wrongful removal to London, would continue to pay the mother maintenance, would not seek to separate the child from the mother’s care save for periods of agreed contact until the first hearing in the family courts in Israel and would pay the cost of a flight for the child to Israel.

On that basis the judge concluded that the evidence fell far short of establishing, on the balance of probabilities, that the child would be exposed to a ‘grave risk of physical or psychological harm or otherwise place the child in an intolerable situation’. The judge ordered the child’s return to Israel immediately where the mother, should she wish to pursue her application to relocate to London would be required to make an application to the family court in Israel, that being the child’s country of habitual residence.

This is perhaps a helpful reminder that the evidence required to establish that a parent has given ‘clear and unequivocal’ consent to an international relocation should be solid. Where there is doubt about the interpretation or wording of an agreement, clarity should be sought before relocation is attempted. On a practical level any parent seeking to relocate should obtain the other parent’s consent in writing, and, if necessary, via lawyers. It is also a reminder that to satisfy the court that a return to the country of habitual residence would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation clear evidence needs to be provided that this would indeed be the case. Simply being an unsatisfactory situation for the child and relocating parent in returning back to the country of habitual residence after a failed relocation is quite clearly not enough as appeared to be the situation in this case.

By Clare Ciborowska Family and Children