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CASE

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Case Name

Family Application 2059/07 Ploni vs. Almonit

INCADAT reference

HC/E/IL 940

Court

Country

ISRAEL

Name

District Court of Jerusalem

Level

Appellate Court

Judge(s)
M. Ravid, O. Efaal-Gabai, A. Farkash

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

ISRAEL

Decision

Date

7 January 2007

Status

Final

Grounds

Consent - Art. 13(1)(a)

Order

Return refused

HC article(s) Considered

13(1)(a)

HC article(s) Relied Upon

13(1)(a)

Other provisions

-

Authorities | Cases referred to
C.A. 7206/03, Gabai v Gabai, P.D. 51(2)241, Supreme Court of Israel Moran, Amiram & Bar "Imigration and Child Abduction, Psychological and Legal Aspects".
Published in

-

INCADAT comment

Exceptions to Return

Consent
Establishing Consent

SUMMARY

Summary available in EN | FR

Facts

The application related to three children who had been living in the United States with their married, Israeli-American parents. On 2 August 2005 the mother took the children for a month long visit to Israel.

The father intended to join the family. Whilst he was still in the U.S., the mother suggested to the father that the family relocate to Israel on a permanent basis. The father agreed and began making arrangements for the move. He also signed a document confirming that he had no objection to the children staying in Israel.

Prior to the father's arrival in Israel, the mother informed him that they would be living separately. The father then changed his view on the relocation and filed an application under the Hague Convention for the return of the children.

Ruling

Retention wrongful but return refused; the father had consented to the relocation of the children to Israel.

Grounds

Consent - Art. 13(1)(a)

The father submitted that the issue of consent should be assessed at the time the children were removed from the U.S. At that point in time, he had not agreed to their long term move, only to a holiday. He also claimed that his consent to the relocation had been given on the basis of the mother's deception and therefore the children should be returned. The mother argued however that at the time of the giving of the consent she had not made a final decision to separate from the father. The Family Court held that the essence and purpose of a removal could evolve, for example, a removal for the purpose of a family visit could turn into a change in the place of residence. The father's consent had to be reviewed at the time he gave his consent to the relocation and not at the time he agreed to the holiday in Israel. Otherwise, in the case of change of plans, it would be necessary to return artificially to the original place of habitual residence in order to leave there again in pursuit of the later objective. Such a requirement would be unnecessary and illogical. The father's consent was found to be informed and since it had been relied upon by the mother, the father could not renege on his initial consent to the relocation. Having preferred the mother's version of events the Family Court and held that the exception of consent had been established and the return of the children would be refused.

INCADAT comment

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.