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Case Name

Re M. (Abduction: Undertakings) [1995] 1 FLR 1021

INCADAT reference

HC/E/UKe 20

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal

Level

Appellate Court

Judge(s)
Butler-Sloss, McCowan L.JJ., Sir Tasker Watkins

States involved

Requesting State

ISRAEL

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

15 July 1994

Status

Final

Grounds

Grave Risk - Art. 13(1)(b) | Undertakings | Procedural Matters

Order

Return ordered subject to undertakings

HC article(s) Considered

12 13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Re A. (Abduction: Custody Rights) [1992] Fam 106, [1992] 2 WLR 536, sub nom Re A. (Minors) (Abduction: Acquiescence), [1992] 2 FLR 14, [1992] 1 All ER 929; B. v B. (Abduction) [1993] Fam 32, [1993] 1 FLR 238, [1993] 3 WLR 265, [1993] 2 All ER 144; Re C. (A Minor) (Abduction) [1989] 1 FLR 403, sub nom C. v C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465; Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390; Re M. (Abduction: Non-Convention Country) [1995] 1 FLR 89.
Published in
http://www.hcch.net/incadat/fullcase/0020.htm

INCADAT comment

Exceptions to Return

Grave Risk of Harm
Economic Factors

Implementation & Application Issues

Measures to Facilitate the Return of Children
Undertakings

SUMMARY

Summary available in EN | FR | ES

Facts

The children, a boy and a girl, were 2 1/3 years and 3 months old respectively at the date of the alleged wrongful removal. They had lived in Israel since their births. The parents were separated and the mother had interim custody. On 23 February 1994 the mother took the children to England, her State of origin.

On 15 April 1994 the High Court ordered that both children be returned to Israel, subject to certain undertakings.

The mother sought to set aside the order on the basis of new evidence. However, on 20 June 1994 the High Court declined jurisdiction to hear the application.

The mother appealed both decisions.

Ruling

Both appeals dismissed and return ordered, subject to undertakings; any application to set aside an order must be made by way of the Court of Appeal.

Grounds

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

The mother had exaggerated the financial difficulties in Israel; there was money available to sustain the family for the limited period with which the English court was concerned. Consequently, there was no grave risk that their return would expose them to an intolerable situation within the stringent requirements of Article 13(1)(b) until the time of hearing before the Israeli court. To be dependent upon Israeli State benefits or English State benefits could not be said to constitute an intolerable situation. The court must trust the Israeli judge to do what was right for the children so that they would not be harmed by the return to Israel.

Undertakings

Undertakings or conditions attached to an Article 12 return order are to make the return of the children easier and to provide for their necessities until the court of habitual residence can become seized of the proceedings. Undertakings must not delay the enforcement of the decision to return the child.

Procedural Matters

The order to return or not to return a child under Article 12 is final in Hague Convention proceedings, and disposes of those proceedings. Substantive proceedings dealing with custody, residence or other needs of a child have considerations wholly different from those relevant to a Convention application. Any application to set aside a return order should be made in the Court of Appeal. The Court of Appeal will be slow to set an Article 12 order aside without compelling evidence. The court requested counsel for the applicant father to obtain details from the father's lawyers in Israel as to when substantive proceedings would be likely to be brought in that jurisdiction. Evidence was adduced that a preliminary hearing could be had within fifteen days.

INCADAT comment

Economic Factors

Article 13(1)(b) and Economic Factors

There are many examples, from a broad range of Contracting States, where courts have declined to uphold the Article 13(1)(b) exception where it has been argued that the taking parent (and hence the children) would be placed in a difficult financial situation were a return order to be made.

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

The fact that the mother could not accompany the child to England for financial reasons or otherwise was no reason for non-compliance with the clear obligation that rests upon the Australian courts under the terms of the Convention.

Canada
Y.D. v. J.B. [1996] R.D.F. 753 (Que. C.A.) [INCADAT Reference: HC/E/CA 369]

Financial weakness was not a valid reason for refusing to return a child. The Court stated: "The signatories to the Convention did not have in mind the protection of children of well-off parents only, leaving exposed and incapable of applying for the return of a wrongfully removed child the parent without wealth whose child was so abducted."

France
CA Lyon, 19 septembre 2011, No de RG 11/02919 [INCADAT Reference: HC/E/FR 1168]

The existence of more favourable living conditions in France could not be taken into consideration.

Germany
7 UF 39/99, Oberlandesgericht Bamberg [INCADAT Reference: HC/E/DE 821]

New Zealand
K.M.A. v. Secretary for Justice [2007] NZFLR 891 [INCADAT Reference: HC/E/NZ 1118]

Financial hardship was not proven on the facts; moreover, the Court of Appeal considered it most unlikely that the Australian authorities would not provide some form of special financial and legal assistance, if required.

United Kingdom - England and Wales
In early case law, the Court of Appeal repeatedly rejected arguments that economic factors could justify finding the existence of an intolerable situation for the purposes of Article 13(1)(b).

Re A. (Minors) (Abduction: Custody Rights) [1992] Fam 106 [INCADAT Reference: HC/E/UKe 48]

In this case, the court decided that dependency on State benefits cannot be said in itself to constitute an intolerable situation.

B. v. B. (Abduction: Custody Rights) [1993] Fam 32, [1993] 2 All ER 144, [1993] 1 FLR 238, [1993] Fam Law 198 [INCADAT Reference: HC/E/UKe 10]

In this case, it was said that inadequate housing / financial circumstances did not prevent return.

Re M. (Abduction: Undertakings) [1995] 1 FLR 1021 [INCADAT Reference: HC/E/UKe 20]

The Court suggested that the exception might be established were young children to be left homeless, and without recourse to State benefits. However, to be dependent on Israeli State benefits, or English State benefits, could not be said to constitute an intolerable situation.

United Kingdom - Scotland
Starr v. Starr, 1999 SLT 335 [INCADAT Reference: HC/E/UKs 195]

IGR, Petitioner [2011] CSOH 208  [INCADAT Reference: HC/E/UKs 1154]

Switzerland
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]

Zimbabwe
Secretary For Justice v. Parker 1999 (2) ZLR 400 (H) [INCADAT Reference: HC/E/ZW 340]

There are some examples where courts have placed emphasis on the financial circumstances (or accommodation arrangements) that a child / abductor would face, in deciding whether or not to make a return order:

Australia
Harris v. Harris [2010] FamCAFC 221 [INCADAT Reference: HC/E/AU 1119]

The financially precarious position in which the mother would find herself were a return order to be made was a relevant consideration in the making of a non-return order.

France
CA Paris, 13 avril 2012, No de RG 12/0617 [INCADAT Reference : HC/E/FR 1189]

In this case, inadequate housing was a relevant factor in the consideration of a non-return order.

Netherlands
De directie Preventie, optredend voor zichzelf en namens Y (de vader /the father) against X (de moeder/ the mother) (7 February 2001, ELRO nr.AA9851 Zaaknr:813-H-00) [INCADAT Reference: HC/E/NL 314]

In this case, financial circumstances were a relevant factor in the consideration of a non-return order.

United Kingdom - Scotland
C. v. C. 2003 S.L.T. 793 [INCADAT Reference : HC/E/UKs 998]

An example where financial circumstances did lead to a non-return order being made.

A, Petitioner [2011] CSOH 215, 2012 S.L.T. 370 [INCADAT Reference: HC/E/UKs 1153]

In this case, adequate accommodation and financial support were relevant factors in the consideration of a non-return order.

European Court of Human Rights (ECrtHR)
Šneersone and Kampanella v. Italy (Application No 14737/09) [INCADAT Reference: HC/E/ 1152]

The ECrtHR, in finding that there had been a breach of Article 8 of the European Convention on Human Rights (ECHR) in the return of a child from Latvia to Italy, noted that the Italian courts exercising their powers under the Brussels IIa Regulation, had overlooked the fact that it was not financially viable for the mother to return with the child: she spoke no Italian and was virtually unemployable.

(Author: Peter McEleavy, April 2013)

Undertakings

Preparation of INCADAT case law analysis in progress.