I have written here on numerous occasions about international child abduction cases, and applications by the parent ‘left behind’ for the summary return of the child to its ‘home’ country, pursuant to the Hague Convention on Child Abduction. Each case has its own particular point or points of interest. In the recent case MK v RP, it was the fact that the mother claimed that the father had given his consent to her removing the child, in an agreement drawn up at the time they were divorced.
The background to the case was as follows. The parents were both Israeli citizens. They married when they were both around 19 years of age and shortly thereafter their daughter was born. The marriage soon broke down and the parents separated in October 2012, the child remaining with the mother. The parents were then divorced, and arrangements to take effect upon the divorce were put into a written agreement, which was registered in the Rabbinical Court of Jerusalem in December 2013.
The agreement provided, amongst other things, for the child to live with the mother, and for the father to have contact with her. Unfortunately, there were problems with the father’s contact and he, therefore, issued child arrangement proceedings in the Family Court of Jerusalem. Those proceedings remain open.
Meanwhile, in June 2015 the mother remarried. Her husband is a British citizen and, according to the mother, she and her husband agreed to relocate to England after two years of marriage.
On 22 November 2017, the mother made an application to the Rabbinical Court seeking an order that she had authority to remove the child permanently from Israel. The father claimed not to have been served with this application. On 28 November, the Rabbinical Court made an order determining that there was no obstacle to the mother removing the child from Israel.
On the following day, the mother travelled to England with the child. She did not inform the father, who only found out what had happened when the child was not made available for contact, and the mother’s lawyer wrote to the Family Court to provide an explanation.
The father then issued his application under the Hague Convention for the summary return of the child to Israel. The mother raised two defences to the application: that the father had consented to the child’s removal, and that a return of the child would expose her to a grave risk of psychological harm or otherwise place her in an intolerable position.
As indicated, the mother claimed that the father’s consent was contained in the divorce agreement. Specifically, the mother said that as there can be stigma within her community in Israel for a divorced woman, the likelihood was that if she were to remarry it would be to a man living abroad.
Accordingly, she said, a clause was inserted into the divorce agreement whereby the husband agreed to consent to the mother taking the child abroad if she remarried, in return for the mother not seeking spousal maintenance.
The father denied giving any such consent.
Hearing the case, Mr Darren Howe QC found that the father had not given consent. The divorce agreement was very poorly drafted and its terms were unclear. It certainly did not contain the clear and unambiguous consent that the mother claimed. As to the order made by the Rabbinical Court on 28 November, that court did not have jurisdiction to deal with the child’s relocation, which was a matter for the Family Court.
As to the ‘risk of harm’ defence raised by the mother, this can be dealt with quite shortly. As Mr Howe found, the mother’s allegations arose largely from the practical arrangements to be put in place for the mother and the child should a return be ordered. He did not accept that a return would place the child in an intolerable situation or cause her psychological harm.
Accordingly, Mr Howe ordered that the child should be returned to Israel immediately. The mother could then if she wished to apply to the Family Court in Jerusalem for permission to relocate with the child to England.
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