H and Others (Minors), In re [1997] UKHL 12; [1998] AC 72; [1997] 2 All ER 225; [1997] 1 FLR 872; [1997] Fam Law 468; [1997] 2 FCR 257 (10th April, 1997)

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> H and Others (Minors), In re [1997] UKHL 12; [1998] AC 72; [1997] 2 All ER 225; [1997] 1 FLR 872; [1997] Fam Law 468; [1997] 2 FCR 257 (10th April, 1997) URL: http://www.bailii.org/uk/cases/UKHL/1997/12.html Cite as: [1998] AC 72, [1997] 2 FCR 257, [1997] UKHL 12, [1997] 1 FLR 872, [1997] 2 All ER 225, [1997] Fam Law 468

In this appeal three young children were removed by their mother, the respondent, from their home in Israel and brought to England without the consent of the appellant, their father. Some six months after the date of such removal, the father applied to the courts in England for an order directing the summary return of the children to Israel under the Hague Convention on the Civil Aspects of International Child Abduction, 1980. Under the Convention, the English court was bound to order such summary return unless the father had "acquiesced" in the removal of the children. Sumner J. held that the father had not so acquiesced. The Court of Appeal (Stuart-Smith, Waite and Otton L.JJ.), The Times, August 14, 1996 reversed that decision, holding that the father had acquiesced. On 11 November 1996 your Lordships allowed an appeal to this House and ordered the immediate return of the children, indicating that reasons would be given at a later date. These are my reasons.

The father was born in Israel: the mother in England. Both are strict Orthodox Jews. Their families arranged their marriage, which was celebrated in London in May 1991. Following the marriage, the couple spent much of their time in Israel but also substantial periods with the mother's family in England. There was a dispute before the judge whether or not the children were habitually resident in Israel. The judge held that they were so resident and his decision on that point was not subsequently challenged.

The oldest child was born in England on 3 October 1992; the second child was also born in England on 18 December 1993; the third child was born in Israel on 6 February 1995.

Unfortunately the marriage was not successful, partly at least because the mother was not happy living in Israel. On 9 November 1995 the mother flew to England with the children. At first she contended that the father had consented to this but it was accepted before the judge that the children were removed without the father's knowledge or consent. On 13 November 1995 the mother obtained an ex parte order from Edmonton County Court which, inter alia, prohibited the father from removing the children from the care and control of the mother or from England. That order was continued, inter partes, on 23 November 1995. However, the father did not receive the notice of that hearing until the day after it took place.

It is of central importance that both the father and the mother are Orthodox Jews. The father in his evidence deposes that their religious beliefs:

On hearing of the English proceedings, the father immediately consulted his local Beth Din in Israel ("the Israel Beth Din"). He was told to ignore the English order and not to take part in the English proceedings. On 26 January 1996 the Israel Beth Din issued a summons to the mother directing her to attend that court in Israel on 19 February 1996 "for the purpose of a Get (Bill of Divorcement) and the ramifications thereof." The mother, having failed to attend the Israel Beth Din, received further summonses on 19 and 28 February 1996. At this stage the mother consulted her Beth Din in London which sent a letter to the Israel Beth Din saying that the dispute should be resolved in London not in Israel. On 11 March the Israel Beth Din informed the mother that her submission that there should be rabbinical proceedings in England was rejected and served her with a fourth summons to attend the Israel Beth Din, this time on 18 March 1996. On 15 March the London Beth Din again wrote to the Israel Beth Din claiming that the London Beth Din was the appropriate forum. On 21 March the Israel Beth Din rejected that submission and issued a fifth summons against the mother to appear on 22 April 1996.

At the end of March or in early April 1996 the father asked the mother to agree that the children should come to spend Passover with him in Israel, promising to return them to her after the festival. The request was refused. At some stage in early April the father first learned of the existence of the Convention. In consequence, when the mother failed to appear on 22 April 1996 before the Israel Beth Din, it made an order authorising the father to take whatever steps he saw fit. The father then immediately invoked the Convention procedures as a result of which on 3 May 1996 the father's originating summons was issued seeking the summary return of the children under the Convention.

Finally by a letter dated 25 March 1996 but in fact not sent until the middle of May 1996 the London Beth Din requested the father to withdraw the Convention proceedings to avoid "contempt and slander" against the father for taking proceedings in the secular courts.

The Convention was signed in 1980 and a large number of countries, including the United Kingdom and Israel, have acceded to it. It was incorporated into the law of the United Kingdom by the Child Abduction and Custody Act, 1985, section 1(2) and Schedule 1. The recitals and Article 1 of the Convention set out its underlying purpose. Although they are not specifically incorporated into the law of the United Kingdom, they are plainly relevant to the construction of an international treaty. The object of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country or their wrongful retention in some country other than that of their habitual residence. This is to be achieved by establishing a procedure to ensure the prompt return of the child to the State of his habitual residence.

Articles 3 and 4 provide, so far as relevant, that the removal or retention of a child under 16 is wrongful when it is effected in breach of rights of custody enjoyed by a person under the law of the State where the child was habitually resident. Articles 6 and 7 provide for each Contracting State to establish a Central Authority. Under Articles 8 and 9 a person claiming that a child has been wrongfully removed or retained can apply to the Central Authority of the State of habitual residence, which then transmits the application to the Central Authority of the State to which the child has been abducted. Under Article 10 the latter Central Authority must seek the voluntary return of the child. If this proves impossible, proceedings for return of the child to the country of habitual residence are brought before the judicial or administrative authorities of the State to which the child has been abducted.

For present purposes, the critical provisions of the Convention are contained in Articles 12 and 13 which, so far as relevant, provide as follows:

Under Article 16, the courts of the State to which the child has been abducted are not to determine the merits of a custody claim after receiving notice of a wrongful removal or retention until it has been determined that the child is not to be summarily returned or unless an application is not lodged within a reasonable time following receipt of the notice.

In the present case, therefore, the following points had to be considered and determined by the English court:

The judge directed himself in law that "acquiescence" as used in the Convention means conduct by the aggrieved parent subsequent to the unlawful removal which is inconsistent with his insistence on the summary return of the children under the Convention.

The mother's case was that the father, by pursuing his claim in the Israel Beth Din, had elected to proceed in the religious courts for divorce and was not, on the evidence, even seeking return of the children in the Beth Din proceedings. In addition, she argued that the father's request that the children should go to Israel for Passover and then be returned to England was inconsistent with seeking an order for the children's immediate return. The judge rejected these submissions holding that the father, as his evidence showed, was throughout anxious to secure the return of the children to Israel and that his recourse to the Israel Beth Din in accordance with the requirements of his religion was not inconsistent with his later (when the religious authorities permitted it) seeking summary return under the Convention. Unfortunately, the judge was misled by the letter from the London to the Israel Beth Din (wrongly dated 25 March but not in fact sent until after these proceedings under the Convention were started) as showing that the mother's religious advisers were themselves taking the view that procedure in the Beth Din was the right course. He further held that the request by the father for access was the act of a man waiting for the Israel Beth Din to secure the return of the children but desperate to see them and was not an act showing that he acquiesced in their remaining in England. The judge accordingly ordered the immediate return of the children to the father in Israel on the father's undertaking, amongst other things, to start appropriate family proceedings in the civil courts in Israel.

Waite L.J. (with whose judgment the other members of the court agreed) after setting out the facts and Article 13 of the Convention stated the law to be as follows:

He then summarised the judge's judgment and recorded that the case argued on behalf of the mother on appeal was based on two propositions. First, that the judge had misdirected himself in law since this was a case of "active acquiescence" and the judge had wrongly relied on the father's "subjective motives" for failing to invoke the Convention promptly. Second, that the judge (misled by the dating error) had wrongly attached significance to the letter dated 25 March 1996 as showing that the mother had herself gone along with the matter being dealt with in the Israel Beth Din. He held that both the mother's arguments were correct. After saying that the father had acted entirely properly within the tenets of his faith in not taking Convention proceedings until authorised by his Beth Din, he continued:

He gave some weight to the father's request for access over Passover and to the judge's misdirection as to the letter wrongly dated 25 March and held, applying the principles of law that he had set out, that the judge ought to have found that the father had acquiesced.

Waite L.J. then proceeded to exercise the discretion which arises under Article 13 where there has been acquiescence and held that the determination of the future of the children should be conducted by the courts of this country not those of Israel.

The primary question in the present case is whether the father, by pursuing his remedies in the Israel Beth Din in accordance with the tenets of his religion rather than promptly bringing proceedings for summary return of the children under Article 12, has acquiesced in "the removal" of the children. It is not a case of wrongful "retention" by the mother: it is established by the decision of this House in In re H (Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476 that there is "retention" of the child for the purposes of the Convention only where the child has been lawfully taken from one country to another (e.g. for staying access for a defined period) and there has then been a wrongful failure to return the child at the expiry of that period. In the present case, the mother wrongfully removed the children and the question is whether the father has acquiesced in that removal.

It will be apparent from my account of the decisions in the courts below that they approach the question of acquiescence from different standpoints. Sumner J. considered all the circumstances of the case with a view to deciding whether the father had in fact agreed to the children staying in this country at least until their long-term future had been determined by some court. The Court of Appeal, on the other hand, applied a rule of law, namely that in a case of "active" acquiescence (said to be the father's persistent attempt to have his matrimonial affairs dealt with in the Israel Beth Din) the actual state of the father's mind was an irrelevant factor to take into account. In the words of Waite L.J. "Where the conduct relied on is active, little if any weight is accorded to the subjective motives or reasons of the party so acting." The question is whether there is any such rule of law.

The distinction between "active" and "inactive" acquiescence was first drawn by the Court of Appeal in In re A. (Minors) (supra). In that case the mother had wrongfully removed the children from Australia to this country. Shortly thereafter the father wrote a letter to the mother saying that "I think you know that what you have done is illegal, but I'm not going to fight it" and generally giving the impression that he would regretfully go along with the children's staying permanently with the mother in this country. In fact, unknown to the mother, the father took immediate legal advice in Australia and was told of his Convention rights. Before the mother received the father's letter, there was a telephone conversation in which the father told the mother that he had taken such advice and mentioned the Convention. Despite the father's endeavours, there was a delay of some three months before the mother was served with proceedings under the Convention and in the meantime there was no further relevant communication between the two. Thorpe J. held that it was not sufficient to investigate only the communications between the parents: whether or not there had been consent or acquiescence could not be determined only by what he represented to the other spouse: "His words must be judged in the round. His words must be judged together with his actions." Judged on that basis Thorpe J. held that it was clear that the father had not, in fact, acquiesced and ordered the summary return of the children.

The Court of Appeal by a majority reversed the judge's decision. Balcombe L.J. in a powerful dissenting judgment agreed with the judge's approach: whether or not the party had acquiesced was a question of fact directed to his subjective frame of mind to be judged in all the circumstances of the case. However, the majority reversed the judge's decision. Stuart Smith L.J. for the first time drew the distinction between active and passive acquiescence. In his formulation, active acquiescence consists of words or actions inconsistent with the wronged parent having an intention to insist on his rights and consistent only with an acceptance of the status quo: passive acquiescence consists of silence or inactivity from which the court can draw an inference of acquiescence. He held that the father, by writing the letter, had actively acquiesced and that the judge had erred in taking into account his actual intentions subsequent to that letter and uncommunicated to the mother. Lord Donaldson M.R. adopted a similar approach.

The distinction between active acquiescence (in relation to which the uncommunicated subjective intentions of the wronged parent is normally irrelevant) and passive acquiescence (in relation to which such subjective intention is relevant) has influenced the later decisions of the Court of Appeal in this field. In In re A. Z. (A Minor) (supra) Sir Michael Kerr (at p. 689) said that the question of acquiescence depended not on the wronged parent's subjective state of mind but on his conduct, viewed objectively. Sir Donald Nicholls V.- C. (at p. 691) treated the relevant question as being an objective one, viz. whether in all the circumstances the wronged parent "has conducted himself in a way that would be inconsistent with him later seeking a summary order for the child's return", an approach also adopted by Butler-Sloss L.J. That same test was applied by Waite L.J. in In re S. (Minors) (supra). In that case Hoffmann L.J. (at p. 836) indicated that the distinction between active and passive acquiescence might have to be reconsidered in the future. Neill L.J. said that active and passive acquiescence must not be "allowed to become rigid categories or substituted for the general term 'acquiesced' in the Convention." He said that "the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact." However, following In re A. (Minors) [1992] Fam. 106 he recognised that there can be cases where the wronged parent has made an unambiguous statement which viewed objectively shows that he is agreeing to the retention of the children in which case such statement "is sufficient and conclusive evidence of acquiescence."

My Lords, this short and necessarily inadequate survey of the Court of Appeal decisions is sufficient to show that the existing authorities do not justify the bald proposition of law formulated and applied by the Court of Appeal in the present case. The fact that there has been some active conduct indicating possible acquiescence does not, on any view, justify ignoring the subjective intentions of the wronged parent. Even on the test laid down in In re A. (Minors) [1992], it is only where the wronged parent has said or done something which is clearly and unequivocally inconsistent with the summary return of the child that his actual subjective intentions are to be disregarded. The test applied by the Court of Appeal in the present case, and the conclusions reached by it, suggest that evidence of the wronged parent's actual intentions are irrelevant or seldom of any weight where there has been positive action of any kind by the wronged parent. The authorities do not support that proposition.

However, I do not think it desirable to decide this appeal on that narrow ground. The authorities disclose a variety of approaches to the meaning of the word "acquiescence" in Article 13 and it is desirable that your Lordships should attempt to state the principles to be adopted. There are three related questions which have to be considered, viz. -

In English law, the concept of acquiescence occurs in many different contexts: waiver, election, laches, estoppel, etc. As Hoffmann L.J. demonstrated in In re S. (Minors) (supra) what constitutes acquiescence under English law varies according to the context in which it is found. But in English law acquiescence by one party normally depends upon his outward actions which must be known to the other party if the latter seeks to rely on them. As between two parties, the outward acts of one party, known to the other, which objectively viewed demonstrate consent by the former to a particular state of affairs will constitute acquiescence. It is this English concept of acquiescence which is reflected in references in the authorities on Article 13 to the circumstances having to be viewed objectively and in the distinction between active and passive acquiescence.

In my view these English law concepts have no direct application to the proper construction of Article 13 of the Convention. An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all contracting States. I would therefore reject any construction of Article 13 which reflects purely English law rules as to the meaning of the word acquiescence. I would also deplore attempts to introduce special rules of law applicable in England alone (such as the distinction between active and passive acquiescence) which are not to be found in the Convention itself or in the general law of all developed nations.

What then does Article 13 mean by "acquiescence"? In my view, Article 13 is looking to the subjective state of mind of the wronged parent. Has he in fact consented to the continued presence of the children in the jurisdiction to which they have been abducted? This is the approach adopted by Neill L.J. in In re S. (Minors) (supra) and by Millett L.J. in In re R. (supra). In my judgment it accords with the ordinary meaning of the word acquiescence in this context. In ordinary litigation between two parties it is the facts known to both parties which are relevant. But in ordinary speech a person would not be said to have consented or acquiesced if that was not in fact his state of mind whether communicated or not.

I am encouraged to find that this is also the view reflected in decisions in other jurisdictions. In the French Cour de Cassation Case No. 228 of 16 July 1992 the court, whilst accepting that acquiescence could be inferred from conduct, held that acquiescence could not be inferred simply from the wronged parent having concurred in a temporary arrangement with a view to arriving at an amicable solution: the court was looking to the actual intention of the parent. The District Court of Massachusetts in Wanninger v. Wanninger (1994) 850 F. Supp. 78 concentrated on the actual intention of the wronged German parent despite his visiting the mother in the U.S.A. (to which the children had been abducted) to seek a reconciliation. In Friedrich v. Friedrich (1996) 78 F. 3d 1060 the Court of Appeals of the 6th circuit adopted a similar approach.

In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world's perception of his intentions.

Once it is established that the question of acquiescence depends upon the subjective intentions of the wronged parent, it is clear that the question is a pure question of fact to be determined by the trial judge on the, perhaps limited, material before him.

In the process of this fact-finding operation, the judge, as a matter of ordinary judicial common sense, is likely to attach more weight to the express words or conduct of the wronged parent than to his subsequent evidence as to his state of mind. In reaching conclusions of fact, judges always, and rightly, pay more attention to outward conduct than to possibly self-serving evidence of undisclosed intentions. But in so doing the judge is finding the actual facts. He can infer the actual subjective intention from the outward and visible acts of the wronged parents. That is quite a different matter from imputing to the wronged parent an intention which he did not, in fact, possess.

Although each case will depend on its own circumstances, I would suggest judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child. The Convention places weight on the desirability of negotiating a voluntary return of the child: see Article 7(c) and Article 10. I disagree with the Footnote to the judgment of Waite L.J. if it is intended to provide guidance to judges in their fact-finding role. Attempts to produce a resolution of problems by negotiation or through religious or other advisers do not, to my mind, normally connote an intention to accept the status quo if those attempts fail. It is for the judge, in all the circumstances of the case, to attach such weight as he thinks fit to such factors in reaching his finding as to the state of mind of the wronged parent. This was the approach adopted by the French Cour de Cassation in the case to which I have referred.

Finally, it should always be borne in mind that under Article 13 the burden of proving that the wronged parent has consented to or acquiesced in the abduction is on the abducting parent who is resisting the summary return of the child. This placing of the burden of proof on the abducting parent is designed to ensure that the underlying purpose of the Convention is carried out, viz., the child is to be summarily returned to its country of habitual residence unless the abductor can prove that the other parent has in effect consented to the removal of the child.

It is a feature of all developed systems of law that there are circumstances in which one party, A, has so conducted himself as to mislead the other party, B, as to the true state of the facts. In such a case A is not allowed subsequently to assert the true facts as against B. In English law, this is typically represented by the law of estoppel but I am not suggesting that the rules of English law as to estoppel should be imported into the Convention. What is important is the general principle to be found in all developed systems of law.

It follows that there may be cases in which the wronged parent has so conducted himself as to lead the abducting parent to believe that the wronged parent is not going to insist on the summary return of the child. Thus the wronged parent may sign a formal agreement that the child is to remain in the country to which he has been abducted. Again, he may take an active part in proceedings in the country to which the child has been abducted to determine the long term future of the child. No developed system of justice would permit the wronged parent in such circumstances to go back on the stance which he has, to the knowledge of the other parent, unequivocally adopted: to do so would be unjust.

Therefore in my judgment there are cases (of which In re A. Z. (A Minor) (supra) is one) in which the wronged parent, knowing of his rights, has so conducted himself vis-à-vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children. However, in my judgment these will be strictly exceptional cases. In the ordinary case behaviour of that kind will be likely to lead the judge to a finding that the actual intention of the wronged parent was indeed to acquiesce in the wrongful removal. It is only in cases where the judge is satisfied that the wronged parent did not, in fact, acquiesce but his outward behaviour demonstrated the contrary that this exceptional case arises.

My Lords, in my judgment these exceptional circumstances can only arise where the words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child: they must be wholly inconsistent with a request for the summary return of the child. Such clear and unequivocal conduct is not normally to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children. Still less is it to be found in a request for access showing the wronged parent's desire to preserve contact with the child, in negotiations for the voluntary return of the child, or in the parent pursuing the dictates of his religious beliefs.

It may be objected that to admit the existence of such exceptional cases in which the actual subjective intentions of the wronged parent do not prevail is to reintroduce by the back door the distinction between active and passive acquiescence which I have rejected. It is true that there are features common to both approaches. But in my judgment the two concepts are not the same. The concept of active and passive acquiescence has led to the approach that acquiescence has to be tested objectively whereas in my view it is a question of subjective intention. The concept of active and passive acquiescence has also led, as in the present case, to a wronged parent who has not, in fact, acquiesced being held to have acquiesced because he has taken some positive action without any analysis of what he has in fact done. The important factor to emphasise is that the wronged parent who has in fact never acquiesced is not to lose his right to the summary return of his children except by words or actions which unequivocally demonstrate that he was not insisting on the summary return of the child.

To bring these strands together, in my view the applicable principles are as follows:

Applying that approach to the present case, the judge found that in fact the father never acquiesced in the retention of the children in this country. The requirements of his faith required him to pursue his claims in the Beth Din. The question therefore is whether this was one of those exceptional cases when, by his actions, the father has led the mother reasonably to believe that, contrary to the father's true intentions, he was not seeking the summary return of the children.

In order to bring this case within the exception, the mother would have to show that the father's actions were clearly and unequivocally inconsistent with his pursuit of his summary remedy under the Convention. The facts are far from satisfying that test. As to the father's recourse to the Beth Din, the mother as an Orthodox Jew must have known of the religious requirement to go first to the Beth Din before resorting to the other courts with the consent of the Beth Din. Moreover, the exact nature of the proceedings in the Beth Din was not demonstrated. If (improbably) the Beth Din proceedings related only to the marriage and not to the children, there is no inconsistency between the Beth Din proceedings and the right to the summary return of the children: they would be concerned with different matters. If, as was not proved, the Beth Din proceedings related also to the children, they do not disclose anything other than that the father, as his faith required, was seeking to secure the decision of his religious court in Israel as to the future of the children. There is nothing inconsistent in a wronged father pursuing remedies in the courts of habitual residence (whether religious or civil) and subsequent recourse to the Convention for the summary return of the children by the courts of the country to which the child has been abducted.

As to the father's suggestion of access in Israel over Passover coupled with an agreement to return them to the United Kingdom, this proposal was as consistent with the father wishing to retain his contact with the children as with the decision by the father not to pursue the summary remedy for their return. It falls far short of any clear and unequivocal indication that the father is not pursuing remedies under the Convention.

The judge inadvertently misdirected himself in relation to the letter wrongly dated 25 March 1996. However, in my judgment this does not affect the validity of his conclusion. He reached the only possible conclusion, bearing in mind his finding that the father never in fact acquiesced in the removal of the children. In my judgment, for the reasons I have given the Court of Appeal misdirected itself in law. It is for these reasons that I joined with your Lordships in allowing the appeal and ordering the summary return of the children to Israel.

I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he has given, I too would allow this appeal.

United Kingdom House of Lords Decisions

H and Others (Minors), In re [1997] UKHL 12; [1998] AC 72; [1997] 2 All ER 225; [1997] 1 FLR 872; [1997] Fam Law 468; [1997] 2 FCR 257 (10th April, 1997)