(Family Division; Macur J; 20 October 2008)
After the family had lived in Israel for almost 3 years, the mother removed the children to England, which was where the family had lived before the move to Israel. The mother claimed that the children had not been habitually resident in Israel, because the relocation to Israel had only ever been temporary, to fulfil the father's employment obligations, and that the father had promised to return to England after 2 years. The father claimed that the intention had always been that Israel would become the family's new home. The mother argued that the father had obtained the move to Israel by deceit, in that he had stated that the move was only temporary when in fact he intended it to be permanent, so that her consent to the change to the family's habitual residence had been vitiated by breach of the original agreement. During the time in Israel the parents had separated for a while, and at one stage the mother had applied to the Israeli courts for temporary custody of the children; the father had obtained injunctions preventing the children's removal from Israel, but had later applied to discharge these during a period of attempted reconciliation. The children were objecting to a return to Israel; there was evidence of domestic violence by the father towards the mother.
At the time of the children's removal from Israel, the children and the mother had been habitually resident in Israel. While the mother had undoubtedly resisted the move to Israel, she had not been coerced into going, and on arrival had expected to remain in Israel for a significant period of time. While fraud or mistake could prevent the acquisition of habitual residence, the court did not accept that a term of habitual residence expressed and agreed to be time limited would take precedence over factual circumstances that indicated the contrary. Habitual residence was a question of fact to be decided according to all the circumstances of the case. The mother had not left Israel at the end of the agreed two-year period, and had acknowledged the jurisdiction of the Israeli court over the family. There had been no consent to the children's removal; the mother had stated on various occasions that she wished to return after a certain period, but the husband had equally frequently expressed different views. The father's inaction for a period of 2 months, and a subsequent delay in pursuing Hague proceedings did not amount to acquiescence. No grave risk had been established. Concerns about domestic violence would be ameliorated, if not removed altogether, if the parties lived separately in Israel; the Israeli state authorities were able to provide appropriate protection, indeed the authorities' offers of protection had in the past been refused by the mother. The children's objections did not prevail, because even the elder child was only at the lower end of the relevant age group, and was, it seemed, unable to distinguish between a return to Israel and a return to living with the father. The children's negative comments about the father were to be viewed in the context of subsequent good contact with the father. The court ordered the return of the children under the Hague Convention, but noted that if the court had had a discretion the court would not have ordered a return, on welfare grounds, and that if the father put the children's interests first he would consider allowing them to remain in England.