Risk of oppressive litigation as a defence in a Hague abduction case

Children|May 9th 2019

In child abduction cases we have often seen the ‘abducting’ parent raise the ‘grave risk of harm’ defence to an application by the other parent for the summary return of the child to its ‘home’ country. To put that in a little more detail, the abducting parent removes the child from its home country without the other parent’s consent, the other parent makes an application under the Hague Convention on Child Abduction for the summary return of the child, and the abducting parent raises the ‘defence’ under Article 13(b) of the Convention, namely that to order the summary return would result in a grave risk of exposure to physical or psychological harm, or otherwise place the child in an intolerable situation.

Obviously, the allegations relied upon to raise the defence can vary tremendously. In the recent case MB v TB one of the allegations relied upon by the mother was slightly unusual: the father’s relentless and oppressive use of the legal system in the ‘home’ country (in the context of his greater means) to obstruct the mother’s care of the child in that jurisdiction. The case suggests that, for most countries at least, it is likely to be difficult to persuade the English court that such an allegation will make out the defence.

The facts of the case were as follows. Both parents are Israeli citizens.  They have one child, ‘L’, who was born in London in 2010. She is an Israeli citizen and a British national. The parties’ relationship broke down in 2012, whilst the mother was residing in Israel, and the parents separated. The father returned to reside permanently in Israel shortly after the mother. L therefore resided in Israel with the mother, from 2012.

After the separation the parents engaged in family court proceedings in Israel. An agreement in relation to custody issues, divorce and ancillary financial issues was endorsed by the court in October 2013, which provided for L to have regular contact with the father. Notwithstanding this, the mother alleged that the father had engaged in a campaign to alienate L from her, and between 2013 and 2017 there was extensive litigation between the parties in the Israeli courts. As Mr Justice MacDonald, hearing the case in the High Court, explained:

“…the mother submits that the course of that litigation was dictated by an intention on the part of the father to use the legal system in a relentless and oppressive effort to obstruct her care of L in that jurisdiction.”

I won’t go into the details of the litigation (you can find a summary in paragraph 22 of the judgment), but there were certainly a remarkable number of court applications issued by both parties between 2013 and 2017: twenty-four by the mother and thirty-six by the father. The parents finally agreed (or so it seemed at the time) to cease all litigation, in November 2017.

On the 6th of November 2018 the mother abducted L to this country. She accepted that the abduction was unlawful. The father applied under the Convention for the summary return of L to Israel, and the mother raised her Article 13 ‘defence’, as mentioned above. The defence also alleged that L was being alienated from her by the father and his new wife, such that there was a risk that L would no longer wish to live with the mother.

Mr Justice MacDonald did not find the defence made out. There was no evidence of alienation. As to the oppressive litigation allegation, it was true both that there had been a substantial amount of litigation between the parents, and that the father was in a better financial position than the mother to sustain that litigation. It was also true that there was likely to be further litigation if L was returned to Israel. However, the English court could be confident that the courts in Israel would take the steps necessary to ensure that any further litigation between her parents, however undesirably protracted, would not be allowed to lead to a grave risk of exposure to physical or psychological harm or otherwise place L in an intolerable situation. Further, the litigation to date had not inflicted appreciable emotional harm on L. There was also no evidence, as the mother asserted, that her mental health would be so affected by further litigation as to disable her from caring for L.

Accordingly, Mr Justice MacDonald ordered that L should be summarily returned to Israel. He concluded his judgment with this familiar appeal to the parents:

“What is clear beyond peradventure is that it is well past time for these parents to stop litigating and start cooperating with regard to L’s welfare. Whilst I am satisfied that L has, happily, the resilience to meet the challenges presented by her parents seeming inability at times to discharge their collective responsibility as parents without resorting to squabbling and bickering between themselves in the courts, L should not have to rely on that resilience to protect her from the emotional consequences of her parents’ inability to collaborate in her best interests. Rather, L is entitled to expect both her parents to prioritise her best interests by co-operating in respect of her welfare. Whilst November 2017 appears now to have represented a false dawn in this regard, it is to be hoped that the parents can now, finally, start putting L first.”

Let us hope that they do.

You can read the full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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