CASE

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Case Name

Kilah v. Director-General, Department of Community Services [2008] FamCAFC 81

INCADAT reference

HC/E/AU 995

Court

Country

AUSTRALIA

Name

Full Court of the Family Court of Australia

Level

Appellate Court

Judge(s)
Bryant CJ, Coleman and Thackray JJ

States involved

Requesting State

ISRAEL

Requested State

AUSTRALIA

Decision

Date

24 June 2008

Status

Overturned on appeal

Grounds

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Undertakings

Order

Appeal dismissed, return ordered

HC article(s) Considered

3 13(1)(a) 13(1)(b)

HC article(s) Relied Upon

3 13(1)(a) 13(1)(b)

Other provisions

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Authorities | Cases referred to
Panayotides & Panayotides (1997) FLC 92-733; M.W. v. Director-General, Department of Community Services [2008] HCA 12; Zafiropoulos and State Central Authority (2006) FLC 93-264; State Central Authority and De Blasio [2002] FamCA 804; S.K. v. K.P. [2005] 3 NZLR 590; Punter v. Secretary for Justice [2007] 1 NZLR 40; Mozes v. Mozes (2001) 239 F.3d 1067; Re J. (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562; Cooper & Casey (1995) FLC 92-575; D.W. v. Director-General, Department of Child Safety (2006) FLC 93-255; M. & M. (Abduction: England and Scotland) [1997] 2 FLR 263; Cameron & Cameron [1996] SC 17; Dixon v. Dixon 1990 SCLR 692; D.P. & Commonwealth Central Authority; J.L.M. v. Director-General NSW Department of Community Services (2001) 206 CLR 401; De L. & Director General, N.S.W. Department of Community Services and Anor (1996) 187 CLR 640.
Published in

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INCADAT comment

Aims & Scope of the Convention

Habitual Residence
Habitual Residence
Can a Child be left without a Habitual Residence?
Relocations
Open-Ended Moves
Time Limited Moves

Exceptions to Return

Consent
Establishing Consent
Grave Risk of Harm
Risks associated with the child's State of habitual residence
Australian and New Zealand Case Law

Implementation & Application Issues

Measures to Facilitate the Return of Children
Undertakings

SUMMARY

Summary available in EN

Facts

The application related to four boys who were aged 10, 7, 5 and 3 years at the time of the appellate hearing. Until May 2006 they had spent their entire lives in Israel with their married parents. The mother was Australian and she had relocated to Israel for the purposes of her marriage. In 2005 the parents' marriage encountered difficulties and in September 2005 the father moved out of the family home.

On 16 May 2006 the mother and children left Israel to travel to Australia. The father took them to the airport and a return to Israel was booked for 27 August 2006. The children commenced school in Sydney on 30 May 2006. There was disagreement between the parents as to the terms and conditions under which the mother left Israel with the children.

The mother asserted she left on an understanding that if the father advised her that the marriage was over, she would not be returning and would settle permanently with the children in Australia. The father asserted that the mother had left for a fixed period only and that he never consented to the children remaining away from Israel on any permanent basis.

In June 2006 the parents raised the possibility of divorce and the mother alleged that the father had stated that she and the children could remain in Australia. She stated to him at that time that she needed to remain in Australia for the remainder of the calendar year to consider their situation.

The mother duly did not return with the children on 27 August 2006. The father then attempted to secure a return by agreement and when that was not successful he subsequently invoked his rights under the Convention. On 29 August 2007 the Family Court of Australia ordered the return of the children, subject to undertakings: [2007] FAMCA 1099. The mother appealed.

Ruling

Appeal dismissed and return ordered; the retention was wrongful for the children had neither lost their Israeli habitual residence at the relevant date nor acquired a habitual residence in Australia. There was no grave risk of harm and whilst the father had at one stage consented to the relocation the trial judge had correctly exercised his discretion to make a return order.

Grounds

Habitual Residence - Art. 3


The trial judge had preferred the mother's version of events, namely that that the proposed trip to Australia might well have been a one way trip and she did so with the father's full knowledge and consent. However, at some point shortly after the move the father adopted the view that he wanted the children back in Israel and he was no longer prepared to abide by any agreement he may have entered into for the mother to retain the children in Australia. On the balance of probabilities the mother had retained the children in Australia initially with the consent of the father but that consent had been withdrawn no later than July 2006.

The trial judge himself had raised the issue of the habitual residence of the children. He held that the circumstances had not existed to have led to the abandonment of the children's Israeli habitual residence. The correctness of this interpretation became the central issue of the appeal.

The mother argued that both on the basis of the settled purpose of the parents and on a broader enquiry into the facts it was clear the children's existing habitual residence was lost immediately upon departure from Israel.

The Full Court accepted that a habitual residence could be lost in a single day, for example upon departure from an initial abode with no intention to return. It noted that there was an apparent division in English case law to as to whether an individual must have a settled intention to take up a long term residence, or whether a settled purpose for the time being, even if of short duration, would be sufficient to acquire a habitual residence. Whilst it did not give a definitive view the Full Court indicated its preference for the latter view.

Referring to the Scottish case Cameron & Cameron [1996] SC 17 [INCADAT Reference: HC/E/UKs 71] the Full Court further accepted that in order to lose their habitual residence there was no requirement that the mother and children had to "cut their ties" with Israel on a permanent basis.

Reviewing the findings of the trial judge the Full Court concluded that he had been correct to rule that the children's habitual residence in Israel was not lost immediately upon departure from Israel. This was because it was then uncertain whether the requisite condition (the end of the marriage) would be fulfilled or not. Moreover, even if the condition were fulfilled the mother may still have returned.

As to whether the children's Israeli habitual residence was lost when the father informed the mother in June that the marriage was not going to continue, the Full Court found that the mother did not have to make a definitive decision at that time as to her future and that of the children, because the return ticket was booked for 27 August.

Furthermore, the father then made it clear within a very short time that he expected her to return to Israel with the children. Additionally uncontroverted evidence, from communication between the parties at that time, indicated that the communication to the mother that the marriage would not continue did not immediately trigger an expression by her of unequivocal intention to remain in Australia. The evidence was that the mother remained ambiguous about whether she would return.

In light of these uncertainties by the mother the trial judge had been correct to conclude that there was no point in time at which it could be said the parents had reached a mutual understanding that Israel was no longer to be the home of the children, both before and after communication to the mother of the father's intention that the marriage would not continue.

The trial judge was correct in finding that the mother did not have a settled intention to abandon her Israeli habitual residence prior to 27 August 2006 and even after that date it appeared there were grounds upon which, after 27 August 2006, the mother was prepared to contemplate returning to Israel, particularly if sufficient financial support were available. That is because the original condition having been fulfilled, the mother continued to be uncertain about whether she would return to Israel.

The mother argued in the alternative that the children had acquired a new habitual residence in Australia prior to the date of their wrongful retention, having spent an appreciable period of residence there. At trial it had been conceded that the retention occurred either upon the mother's failure to return the children to Israel on 27 August 2006, or, upon the mother communicating to the father finally in December 2006 that she did not intend to return to Israel.

In making her submission the mother sought to rely on New Zealand case law on habitual residence, most notably SK v KP [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816], which emphasised a broad factual inquiry in determining a child's habitual residence. She submitted that the trial judge had failed to undertake such an inquiry and had consequently ignored relevant factors showing the integration of the children into Australian life.

The Full Court held that the conduct of a broad factual inquiry to consider "the objective connection the children have with different states" on the question of habitual residence was not part of the law in Australia. Rather Australian case law had followed the follow the English approach in which a settled purpose was a necessary and integral part of a finding of habitual residence.

The Full Court declined to make a definitive ruling on the New Zealand approach, given that a majority in the New Zealand Court of Appeal had accepted the principle that a Court having jurisdiction should be slow to infer that there had been a loss of habitual residence arising from the prolonging of a child's stay in a new state beyond original expectations without protest or countering action, because of the desire to achieve a reconciliation or reach an agreement between parents on arrangements for custody.

Consent - Art. 13(1)(a)


The mother contended that, having found the father had consented to the children being removed from Israel and being retained in Australia, the trial judge had erred in failing to exercise his discretion to refuse to order their return. The Full Court found no error in the trial judge's finding the father's change of mind had the effect of making the retention of the children wrongful after July 2006.

The trial judge considered the arguments of both parents and weighed up the competing views as to whether it was appropriate for the mother and children to reside in Australia on a long-term basis against the effect that that would have on the opportunity for them to develop a meaningful relationship with their father and many other issues affecting their best interests. On balance, in what was clearly a finely balanced case, he determined that, provided reasonable financial arrangements could be made within a reasonable time, a return order should be made.

Grave Risk - Art. 13(1)(b)

The trial judge rejected the argument that the return of the children to Israel would expose them to physical harm on the basis that this would be effectively to return them to a war zone.

The only evidence supporting the contention was a travel advisory notice issued by the Australian government. This was dismissed by the trial judge who noted that there were five levels of travel advice and the recommendation "to exercise a high degree of caution in Israel" this was only the third level. He noted that similar advice was proffered in relation to a number of Hague Convention countries including Brazil, Mexico, Panama, South Africa, Turkey and Venezuela.

This finding was not challenged on appeal. The mother did seek to make a new argument that there would be a grave risk arising from severe economic hardship. The Full Court found that the evidence did not support such a submission, but noted in any event that the economic concerns of the mother had been addressed at trial though the impositions of conditions on the applicant father.

Undertakings


The Full Court upheld the orders framed by the trial judge which were designed to ameliorate the economic effect of the return of the children on the mother as well as achieving a balance between her reasonable demands and the "claims of a father unable to meet them."

The trial judge had noted that the mother needed enough money to live on until she could approach an Israeli court for some urgent relief. He made orders which met that condition, including the provision of airfares and accommodation. If these were not complied with by the applicant father the return order would lapse.

INCADAT comment

The decision of the Full Court was overturned by the High Court: L.K. v. Director-General Department of Community Services [2009] HCA 9 [INCADAT Reference: HC/E/AU 995]. The High Court ruled that too great an emphasis had been placed on the mother's settled intention and that in the light of all the circumstances the children had lost their habitual residence in Israel.

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.

Can a Child be left without a Habitual Residence?

In early Convention case law there was a clear reluctance on the part of appellate courts to find that a child did not have a habitual residence.  This was because of the concern that such a conclusion would render the instrument inoperable, see:

United Kingdom - England & Wales
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548 [INCADAT cite: HC/E/UKe 40];

Australia
Cooper v. Casey (1995) FLC 92-575 [INCADAT cite: HC/E/AU 104].

However, in more recent years there has been a recognition that situations do exist where it is not possible to regard a child as being habitually resident anywhere:

Australia
D.W. & Director-General, Department of Child Safety [2006] FamCA 93, [INCADAT cite: HC/E/AU 870].

In this case the majority accepted that their decision could be said to deny the child of the benefit of the Convention. However, the majority argued that the interests of children generally could be adversely affected if courts were too willing to find that a parent who had attempted a reconciliation in a foreign country, was to be found, together with the child, to have become "habitually resident" in that foreign country.

United Kingdom - England & Wales
W. and B. v. H. (Child Abduction: Surrogacy) [2002] 1 FLR 1008 [INCADAT cite: HC/E/UKe 470];

United Kingdom - Scotland
Robertson v. Robertson 1998 SLT 468 [INCADAT cite: HC/E/UKs 194];

D. v. D. 2002 SC 33 [INCADAT cite: HC/E/UKs 351];

New Zealand
S.K. v. K.P. [2005] 3 NZLR 590, [INCADAT cite: HC/E/NZ 816];

United States of America
Delvoye v. Lee, 329 F.3d 330 (3rd Cir. 2003) [INCADAT cite: HC/E/USf 529];

Ferraris v. Alexander, 125 Cal. App. 4th 1417 (2005) [INCADAT cite: HC/E/US 797].

Relocations

Where there is clear evidence of an intention to commence a new life in another State then the existing habitual residence will be lost and a new one acquired.

In common law jurisdictions it is accepted that acquisition may be able to occur within a short period of time, see:

Canada
DeHaan v. Gracia [2004] AJ No.94 (QL), [2004] ABQD 4, [INCADAT cite: HC/E/CA 576];

United Kingdom - England & Wales
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT cite: HC/E/UKe 2];

Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548, [INCADAT cite: HC/E/UKe 40].

In civil law jurisdictions it has been held that a new habitual residence may be acquired immediately, see:

Switzerland
Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P.367/2005 /ast, [INCADAT cite : HC/E/CH 841].

Conditional Relocations 

Where parental agreement as regards relocation is conditional on a future event, should an existing habitual residence be lost immediately upon leaving that country? 

Australia
The Full Court of the Family Court of Australia answered this question in the negative and further held that loss may not even follow from the fulfilment of the condition if the parent who aspires to relocate does not clearly commit to the relocation at that time, see:

Kilah & Director-General, Department of Community Services [2008] FamCAFC 81, [INCADAT cite: HC/E/AU 995].

However, this ruling was overturned on appeal by the High Court of Australia, which held that an existing habitual residence would be lost if the purpose had a sufficient degree of continuity to be described as settled.  There did not need to be a settled intention to take up ‘long term' residence:

L.K. v. Director-General Department of Community Services [2009] HCA 9, (2009) 253 ALR 202, [INCADAT cite: HC/E/AU 1012].

Open-Ended Moves

Where a move is open ended, or potentially open ended, the habitual residence at the time of the move may also be lost and a new one acquired relatively quickly, see:

United Kingdom - England and Wales (Non-Convention case)
Al Habtoor v. Fotheringham [2001] EWCA Civ 186, [INCADAT cite: HC/E/UKe 875];

New Zealand
Callaghan v. Thomas [2001] NZFLR 1105 [INCADAT cite: HC/E/NZ 413];

United Kingdom - Scotland
Cameron v. Cameron 1996 SC 17, 1996 SLT 306, 1996 SCLR 25 [INCADAT cite: HC/E/UKs 71];

Moran v. Moran 1997 SLT 541 [INCADAT cite: HC/E/UKs 74];

United States of America
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].

Time Limited Moves

Where a move abroad is time limited, even if it is for an extended period of time, there has been acceptance in certain Contracting States that the existing habitual residence can be maintained throughout, see:

Denmark
Ø.L.K., 5. April 2002, 16. afdeling, B-409-02 [INCADAT cite: HC/E/DK 520];

United Kingdom - England & Wales
Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294; [2000] 3 FCR 412 [INCADAT cite: HC/E/UKe 478];

United States of America
Morris v. Morris, 55 F. Supp. 2d 1156 (D. Colo., Aug. 30, 1999) [INCADAT cite: HC/E/USf 306];

Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT cite: HC/E/USf 301].

However, where a move was to endure for two years the United States Court of Appeals for the Third Circuit found that a change of habitual residence occurred shortly after the move, see:

Whiting v. Krassner 391 F.3d 540 (3rd Cir. 2004) [INCADAT cite: HC/E/US 778].

In an English first instance decision it was held that a child had acquired a habitual residence in Germany after five months even though the family had only moved there for a six month secondment, see:

Re R. (Abduction: Habitual Residence) [2003] EWHC 1968 [INCADAT cite: HC/E/UKe 580].

The Court of Appeal of China (Hong Kong SAR) found that a 21 month move led to a change in habitual residence:

B.L.W. v. B.W.L. [2007] 2 HKLRD 193, [INCADAT cite: HC/E/HK 975].

Establishing Consent

Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.

United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:

Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].

This strict view has not been repeated in later first instance English cases, see:

Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];

Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].

In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing.  Moreover, there could also be cases where consent could be inferred from conduct.

Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].

Convincing evidence is required to establish consent.

Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].

The Re K. approach was specifically endorsed by the Irish Supreme Court.

The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].

Consent need not be for a permanent stay.  The only issue is that there must be consent and that it has been proved convincingly.

South Africa
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

Consent could be express or tacit.

Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];

5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];

5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];

The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child.  To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.

United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].

There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.

Risks associated with the child's State of habitual residence

Article 13(1)(b) has on occasion been raised not with regard to a specific risk directed at the individual child, but as the result of general circumstances prevailing in the State of habitual residence.

In the well-known US appellate case of Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) [INCADAT Reference: HC/E/USf 82], it was held, inter alia, that a grave risk could only exist when the return would put the child in imminent danger prior to the resolution of a custody dispute, e.g. by returning the child to a war zone or famine area.

This argument has been raised most frequently with regard to Israel.

Return to Israel

Courts have been divided over whether a return to Israel would expose a child to a grave risk of harm, but a clear majority has taken the view that it would not, see:

Argentina
A. v. A. [INCADAT Reference: HC/E/AR 487]

Australia
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT Reference: HC/E/AU 995]

Belgium
No 03/3585/A, Tribunal de première instance de Bruxelles [INCADAT Reference: HC/E/BE 547]

Canada
Docket No 1 F 3709/00; C., 4 December 2001, Superior Court of Justice, Ontario, Court File No 01-FA-10575

Denmark
V.L.K., 11. januar 2002, 13. afdeling, B-2939-01 [INCADAT Reference: HC/E/DK 519]

United Kingdom - England and Wales
Re S. (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 [INCADAT Reference: HC/E/UKe 469]

France
CA Aix en Provence, 8 octobre 2002, No de RG 02/14917 [INCADAT Reference: HC/E/FR 509]

Germany
1 F 3709/00, Familiengericht Zweibrücken, 25 January 2001 [INCADAT Reference: HC/E/DE 392]

United States of America
Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) [INCADAT Reference: HC/E/USf 133]

However, the argument has been upheld on several occasions:

Australia
Janine Claire Genish-Grant and Director-General Department of Community Services [2002] FamCA 346 [INCADAT Reference: HC/E/AU 458]

United States of America
Silverman v. Silverman, 2002 U.S. Dist. LEXIS 8313 [INCADAT Reference: HC/E/USf 481] (see however: Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/US 530])  

Return to Zimbabwe

The highest jurisdiction in the United Kingdom, the House of Lords, rejected in 2008 a submission that the moral and political climate in Zimbabwe was such that any child would be at grave risk of psychological harm, or should not be expected to tolerate having to live there.

Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]

Return to Mexico

CA Rennes, 28 juin 2011, No de RG 11/02685 [INCADAT Reference: HC/E/FR 1129]

The mother mentioned the pollution of Mexico City, the insecurity due to crime in the Mexico City metropolis, and earthquake risks. She did not, however, show how these risks affected the children personally and directly. She had not mentioned those factors as justification for her decision to move to France, in a document sent to the father in 2010, but had referred to financial and family difficulties. In addition, the Court of Appeal noted that these factors had not deterred her from living in Mexico from 1998 to 2010 and raising two children there. It further noted that the mother had not seen fit to apply to the Mexican authorities for permission to move to France with the children, without explaining the reasons which in her view could jeopardise her right to a fair trial in Mexico.

The Court of Appeal made it clear that it did not affirm that the pleas raised by the mother were groundless. They might be used in connection with the issue of custody, but were not a sufficient proof of a grave risk.

(Author: Peter McEleavy, April 2013)

Australian and New Zealand Case Law

Australia
In Australia a very strict approach was adopted initially with regard to Article 13(1) b), see:

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU @294@];

Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT cite: HC/E/AU @293@].

However, following the judgment of the High Court in the joint appeals:

D.P. v. Commonwealth Central Authority; J.L.M. v. Director-General, New South Wales Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081), [INCADAT cite HC/E/AU @346@, @347@], where a literal interpretation of the exception was advocated, greater attention has now been focused on the risk to the child and the post return situation. 

In the context of a primary carer abducting parent refusing to return to the child's State of habitual residence, see:

Director General, Department of Families v. R.S.P. [2003] FamCA 623, [INCADAT cite HC/E/AU @544@].

With regard to a child facing a grave risk of psychological harm see:

J.M.B. and Ors & Secretary, Attorney-General's Department [2006] FamCA 59, [INCADAT cite HC/E/AU 871].

For recent examples of cases where the grave risk of harm exception was rejected see:

H.Z. v. State Central Authority [2006] FamCA 466, [INCADAT cite HC/E/AU 876];

State Central Authority v. Keenan [2004] FamCA 724, [INCADAT cite HC/E/AU @782@].

New Zealand
Appellate authority initially indicated that the change in emphasis adopted in Australia with regard to Article 13(1) b) would be followed in New Zealand also, see:

El Sayed v. Secretary for Justice, [2003] 1 NZLR 349, [INCADAT cite: HC/E/NZ 495].

However, in the more recent decision: K.S. v. L.S. [2003] 3 NZLR 837 [INCADAT cite: HC/E/NZ 770] the High Court of New Zealand (Auckland) has affirmed, albeit obiter, that the binding interpretation in New Zealand remained the strict interpretation given by the Court of Appeal in:

Anderson v. Central Authority for New Zealand [1996] 2 NZLR 517 (CA), [INCADAT cite: HC/E/NZ 90].

Undertakings

Preparation of INCADAT case law analysis in progress.