{"id":768991,"date":"2026-04-30T02:11:41","date_gmt":"2026-04-30T00:11:41","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/ca-v-ka\/"},"modified":"2026-04-30T02:11:41","modified_gmt":"2026-04-30T00:11:41","slug":"ca-v-ka","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/ca-v-ka\/","title":{"rendered":"CA v KA"},"content":{"rendered":"
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9 So both parents, in my judgment, are to be criticised for devoting all their forensic energy to fighting this procedural battle whilst at the same time sitting on their hands in relation to the substantive relief that they respectively seek. Had the mother applied on 18 or 19 February 2019 to the German court for an interim custody order in her favour and for interim permission for IA to continue to live with her in this jurisdiction, I daresay that by now that application would have been determined, and had it been determined in her favour this hearing would have been rendered entirely unnecessary. But in the events which have occurred, I have no option under the law but to determine the application as it is placed before me, although I again record my disappointment and dismay that litigants once again devote all their forensic energy to fighting what is, in a sense, a procedural sideshow rather than focusing on the main prize, which is an adjudication of IA\u2019s welfare in the court of her homeland. 10 Following the father submitting his authority for the return of IA to Germany to the German Central Authority on 27 September 2018, the parties engaged in negotiations. However, the fact that the father had taken this step was not revealed to the mother. On the evening of 22 October 2018 the mother and the father spoke for about 2\u00bd hours on the telephone. The mother in her statement states that they were trying to reach agreement, but it is clear that on that occasion the parties did reach a substantive agreement. There may have been peripheral matters which remained outstanding; there may have been, to speak idiomatically, I\u2019s to be dotted and T\u2019s to be crossed, but they unquestionably reached a substantive agreement, which provided that IA would remain in the primary care of her mother and would have frequent contact to her father. 11 In his statement, written on 5 April 2018, the father says about this, \u201cFollowing this telephone conversation, I put the Hague proceedings and the police complaint on hold\u201d, but he did not in that statement at that time reveal what, in fact, he had told the German Central Authority when he, as he put it, put his application on hold. The email that he sent to the German Central Authority on 23 October 2018 was only produced this morning appended to his third statement. That email was sent by the father to Mr Schubert at 15.58 German time. With the statement that was produced this morning there was a very crude translation derived from Google Translate, but today there have been in my court two translators of the German language who, over the luncheon adjournment, were able to agree a definitive translation of what the father wrote, and it was as follows: \u201cDear Mr Schubert I refer to our telephone earlier today. As agreed, I would like to confirm again in writing and request my withdrawal of my Hague Convention application. As discussed, my wife and I were able to find a very good and mutually agreed solution which is in our daughter\u2019s best interests and which we will regularise. In this way, we both mutually accept as parents that we have clarified questions of child custody, decisions regarding our child and contact in an out of court agreement. The condition for this is my withdrawal of my criminal complaint to avoid my wife\u2019s concerns about criminal proceedings and an international criminal record, so that she suffers no disadvantage regarding her future child custody rights and her work. Should you have any questions, please call me. Many thanks\u201d 12 The terms of that email show categorically that the parties had reached a substantive agreement. As I say, there may have been outlying or peripheral matters which remained to be agreed and, as I have said, there may have been, to speak idiomatically, I\u2019s to be dotted and T\u2019s to be crossed, but there was no doubt a substantive agreement. In the sphere of family relations, the law recognises substantive agreements which might not be regarded as contractually perfectly formed. In this regard I refer to the famous case of Xydhias v Xydhias [1999] 1 FLR 683. 13 That the parties reached a substantive agreement is put beyond any doubt by the fact that the day after the father spoke to and wrote to Mr Schubert of the German Central Authority, he was sent by the mother a draft parenting agreement, which was prepared by her and which states that the matters were agreed on 22 October 1988. It is true that the agreement bears the watermark \u2018Draft\u2019, which would suggest that there were perhaps some outlying or peripheral matters yet to be agreed, but there can be no doubt, having regard to the terms of the father\u2019s email to Mr Schubert, that the headlines were clearly agreed and they were as follows: \u201cKA shall be IA\u2019s primary custodian and will reside in the United Kingdom with her mother. Both KA and CA will share parental responsibility. KA will continue to facilitate the process of CA being able to speak to IA regularly. CA will make every effort to speak to IA a minimum of four times a week by video calling. CA will ensure that his new accommodation has suitable furniture for IA\u2019s overnight and extended stays. Both parents will rotate the visits each month between the United Kingdom and Germany.\u201d Then there are provisions about how visitation is to be financed. 14 In my judgment, these words appearing in this draft agreement, when taken with the mother\u2019s evidence in her statement and, most significantly, the terms of the father\u2019s email to Mr Schubert show clearly that the father had, in the words of Lord Browne-Wilkinson, \u201cconsented to the continued presence of IA in the jurisdiction in which she had been retained.\u201d I, therefore, find as a fact that the father\u2019s state of mind was that he did so consent, and that acquiescence in the terms of Article 13.1(a) is proved. 15 I have already explained that where proof of acquiescence is made, that does not establish an absolute defence, rather it opens the door to a discretionary power in this court, which is not really a discretionary power at all, but is a value judgment to be made by this court as to whether nonetheless the child should be returned to Germany. In that regard I place significant emphasis on the matters I have already mentioned, which is that Germany is the court of primary jurisdiction. It seems to me, having regard to that fact, having regard to the inexplicable failure by each of the parents to have instituted any proceedings at the present time in Germany, and having regard specifically to the terms of Article 7.3 of the 1996 Hague Convention, that it would be precipitate for me to order the return of IA to Germany. Rather, it is my clear judgment that respect is paid to the primacy of the German court\u2019s jurisdiction if I were to leave that decision to the German court. It may well be that the German court decides that ad interim IA should be returned, but that is a decision which is to be made only by the German court and not by me, it seems to me, as a matter of principle. 16 If I am wrong about that, and I do have to conduct some kind of welfare inquiry myself, I do not believe that it would be in IA\u2019s interests for her to be uprooted and to be exposed to the risk of \u2018ping pong\u2019, to use a phrase, returning her to Germany now in circumstances where the mother must have a strongly arguable case in the German court to be granted permission to relocate with IA to this country. 17 I decline, therefore, to exercise my discretion to order a return of IA to Germany. So the application is dismissed. _____________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737civil@opus2.digital ** This transcript has been approved by the Judge **<\/p>\n<\/div>\n

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Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

9 So both parents, in my judgment, are to be criticised for devoting all their forensic energy to fighting this procedural battle whilst at the same time sitting on their hands in relation to the substantive relief that they respectively seek. Had the mother applied on 18 or 19 February 2019 to the German court for an interim custody order…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[8046],"kji_chamber":[],"kji_year":[45029],"kji_subject":[7638],"kji_keyword":[7626,8048,16282,24681,8047],"kji_language":[7611],"class_list":["post-768991","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-high-court-family-division","kji_year-45029","kji_subject-famille","kji_keyword-agreement","kji_keyword-father","kji_keyword-german","kji_keyword-germany","kji_keyword-mother","kji_language-anglais"],"yoast_head":"\nCA v KA - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/ca-v-ka\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"CA v KA\" \/>\n<meta property=\"og:description\" content=\"9 So both parents, in my judgment, are to be criticised for devoting all their forensic energy to fighting this procedural battle whilst at the same time sitting on their hands in relation to the substantive relief that they respectively seek. 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