The rules in tug-of-laws cases
8 February 1994
In the emotionally charged world of child abduction cases it is vital that the parties have as full an appreciation as possible of the working of the jurisdiction in which they are involved.
That need, is stressed by David Sterrett of Margaret Bennett's specialist family law practice based in London. They must be aware that courts in different countries will handle similar cases in different ways, he says.
Sterrett's recent case, which has also thrown out new Appeal Court guidelines on the increasing practice of calling for undertakings in Hague Convention child abduction matters, emphasised the difference of approach between English courts and the courts of other signatories to the convention.
It also emphasised the confusion of litigants when asked to accept a system operating differently to their own, says Sterrett.
"It's not the easiest task explaining to the non-abductor that courts here can adopt a different approach to the courts in their own country even though the laws they are applying are the same," he says.
His case involved an English mother who has now been ordered by both the High Court and the Court of Appeal to return with her children to Israel. He represented the father.
The major difficulty for the father stemmed from the fact that while in other countries, such as Israel, if it is found that a child has been wrongfully removed, it is returned to its place of habitual residence forthwith. However, in this jurisdiction a practice of undertakings has been developed which are required to be given by the non-abducting parent before an order for return can be effected.
"The father understood the law in this area as it is applied in his own country and found it difficult to conceive why, as the children had been wrongly taken from Israel, once it was shown they had been wrongfully removed, why they should not automatically be returned without any further conditions being imposed on him."
The courts here did tie the father down with conditions, which provided the key for his wife to appeal the return order after he failed to comply with them on time.
In the Family Division Kirkwood J ordered the children to be returned to Israel, conditional on undertakings from the father to lodge one month's rent on a flat for the mother and children and provide maintenance money.
The father was late handing over cash to his wife's Israeli lawyer. The wife then appealed claiming late payment indicated her husband had little money and that money would run out after she had been in Israel for a month. This she said would place her in an "intolerable" situation and provided grounds for a successful challenge to the return order.
She also claimed she would face action by an Israeli bank, over a debt for which she was jointly responsible. It was on these latter two points that the case unexpectedly drew an Appeal Court warning on the extent to which undertakings should be demanded by courts in the future.
Lady Justice Butler-Sloss stressed that courts should not demand long term undertakings. She indicated that most countries that were parties to the Hague Convention had welfare systems which if necessary could take over responsibility for children sent back to them.
The Court did not consider lack of long term undertakings from, or impecuniosity on part of the father could be regarded as placing the mother in an intolerable situation which entitled her to avoid being ordered to return the children.
"In recent years we have seen 'shopping lists' of undertakings growing increasingly longer in cases similar to this one," says Sterrett. "This case makes it clear that it is a practice that should be curbed and that refusal or inability to comply with demands for long term undertakings is not necessarily a reason to refuse an order under the Hague Convention."