MK v RP (Hague Child Abduction Convention)

Under the Hague Child Abduction Convention, a child wrongfully removed within one year should ordinarily be returned forthwith. A defence based on consent requires proof that the parent clearly and unequivocally consented to the removal. The question is fact-specific and consent may be withdrawn before removal.

Under Article 13(b), the opposing parent bears the burden of proving a grave risk of physical or psychological harm, or an intolerable situation, assessed by reference to the circumstances on return. Protective undertakings and arrangements in the requesting state may be relevant. Practical difficulties, financial hardship and separation from a step-parent do not necessarily establish the required grave risk.

The applicant father sought the summary return to Israel of his six-year-old daughter, whom the respondent mother had brought to England. It was agreed that the child had been habitually resident in Israel and that the removal occurred within one year of the proceedings.

The mother relied on two defences under Article 13 of the Hague Convention. She alleged that the father had consented to relocation under the parties’ divorce agreement and that return would expose the child to grave psychological harm or place her in an intolerable situation. The central questions were whether consent had been clearly and unequivocally given, whether the removal was wrongful, and whether either Article 13 defence had been established.

1. Consent. The mother bore the burden of proving, on the balance of probabilities, that the father had clearly and unequivocally consented to the child’s relocation. The principles identified in Re P-J (Children)(Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588 governed the inquiry. Consent could be given in advance, but it had to remain operative at removal, relate to an objectively ascertainable event, and be assessed in the realities of family life rather than contract law.
2. The divorce agreement was poorly drafted and ambiguous. It recorded arrangements for visitation and anticipated cooperation if either parent emigrated, but it did not record clear and unequivocal consent to the child’s removal. The mother’s conduct, including leaving without notice, failing to arrange contact and concealing the departure, was inconsistent with an agreement that the father had consented to relocation.
3. The Rabbinical Court’s order did not provide valid permission for removal. On the accepted expert evidence, relocation was a guardianship issue within the jurisdiction of the Family Court of Jerusalem. The child was therefore wrongfully removed from Israel in breach of the father’s custody rights.
4. Article 13(b). The mother had to establish a grave risk of physical or psychological harm or an intolerable situation. The assessment concerned the situation that would exist if the child returned, including available protective arrangements. The principles in Re E (Children) [2011] UKSC 27 and Re D (Abduction: Rights of Custody) [2007] 1 AC 619 were applied.
5. The asserted homelessness, financial difficulties, separation from the mother’s husband and possible delay in Israeli proceedings did not establish the required grave risk. The father’s undertakings, including maintaining payments, funding the child’s flight and not separating the child from the mother pending an Israeli hearing, were adequate for the interim period.
6. Both defences failed. The court ordered the child’s return to Israel forthwith, meaning immediately and without further delay.