RS (A Child), Re [2015] EWHC 2880 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No No.FD15P00244[2015] EWHC 2880 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Wednesday, 29 th July 2015
Before
MR. JUSTICE BAKER(In Private)
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1085
AND IN THE MATTER OF RS (A CHILD)
B E T W E E N:
Between
MSApplicantPSRespondent
Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers5 Chancery Lane, London EC4A 1BLTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MR. M. GRATION (instructed by The International Family Law Group LLP) appeared for Applicant.THE RESPONDENT appeared in person. for in person
J U D G M E N T
[1]This is an application by a father for an order under the Hague Child Abduction Convention for the return of his son to Israel. The application is opposed by the mother of the boy who wishes to remain in this country with him. The parties are of dual British and Israeli nationality. The father is aged 47, the mother is 45. The parties have known each other for a long time. They knew each other as teenagers, but resumed the relationship in about 2008. At that time, the father had been living in Israel since 2004, while the mother was still living in England. The parties went through a civil marriage in Scotland on 5th March 2009, followed by a religious ceremony at a synagogue in London a week later.[2]In early 2010 the mother moved to Israel and the couple moved to live on a kibbutz. The only child, the subject of these proceedings, R, was born in Israel on 1st February 2012, very prematurely at 29 weeks gestation. Thereafter the family lived together on the kibbutz. In his evidence, the father describes community life on the kibbutz and says that the family was fully integrated into that community. R suffers from periventricular leukomalacia requiring extensive physiotherapy, which is largely carried out by his mother. It is accepted, though, that his condition, fortunately, does not stop him leading a very normal active life for a little boy aged three.[3]According to the mother, her relationship with the father deteriorated after R was born. She found the father to be unsupportive and unsympathetic, obsessed with himself and dismissive of her concerns about R's health. The father does not accept this description of his behaviour. According to the mother, matters came to a head at Yom Kippur in October 2014 when, according to her, an argument ensued in the course of which the father accused her of disrespecting him and his religion. The mother says that she told him that she would leave with R, whereupon he ran at her with a fork, held it up to her face and said he would have her killed before she even got to the airport. The father denies that this incident occurred in the way described by the mother. The mother said that this was a turning point for her. On a subsequent occasion she alleges he was aggressive to her again in R's presence. She gives other examples of what she portrays as selfish and boorish behaviour on the father's part.[4]On 16th February 2015, the mother and R left Israel and travelled to England. It is the mother's case that she could not take any more of the father's alleged behaviour and told him that they had to have time apart. She said that it was agreed that she would go to England for as long as she needed to. It is the father's case that he only agreed to R being brought here for a holiday until 11th March, and that this was subsequently extended by consent to the beginning of April. The dispute is a principal issue in the case and I shall have to consider the evidence about it below.[5]The mother did not return R to the jurisdiction of Israel, and on 3rd June the father started proceedings under the 1980 Hague Convention seeking the return of the child. At a without notice hearing before Russell J, a tipstaff passport order was made with directions to the mother to file and serve a formal statement in support of her case by 9th June in the event that she wanted to defend the father's application. The passport order was served on the mother on the morning of 4th June. Subsequently she consulted solicitors, Messrs. Dawson Cornwell. When the matter returned to court for a directions hearing on 10th June, Bodey J ordered the mother to file and serve a statement by 22nd June, with a response from the father by 6th July, and listed a pre-trial review on 8th July, with a final hearing to follow on 16th July with a time estimate of two days.[6]The pre-trial review took place before Pauffley J on 8th July. On that occasion, an order was made for the father to file and serve a schedule of undertakings by 10th July, with a further order for the mother to file and serve by the same date any documents she was able to obtain in respect of the child's registration in England at a nursery and GP in England. On 13th July, the mother informed the court and the father's solicitors that she was now acting in person. Although the case had been listed for a final hearing on 16th July, no judge was available to hear the case and the application was therefore adjourned to 27th July when it came before me.[7]At the outset of the hearing, which was delayed until 28th July, the mother applied for a further adjournment to enable her to obtain representation from the pro bono unit. That process would have taken a further three weeks and, given the fact that the end of the summer term is now upon us, there was no prospect of the case being heard until at least September. It is well recognised that applications under the Hague Convention must be dealt with speedily. Having read the mother's position statement and documents, I have formed the view that she will be able to argue her case and, insofar as necessary, cross-examine the father with the assistance of her stepfather, Mr. Dodd, acting as her McKenzie friend. In the event, the hearing has taken place and has taken longer than it normally would have done had the mother been represented. I am satisfied, however, that the mother has been able to represent herself effectively and has not been at a disadvantage. In the circumstances, I did allow oral evidence to be given perhaps rather more extensively than would normally be the case if both parties were represented. Both parents gave evidence and were cross-examined. At the conclusion of the evidence, Mr. Gration, on behalf of the father, delivered short oral submissions, supplementing his comprehensive written skeleton argument, and the mother then asked me to adjourn the hearing until the following morning (this morning) before she gave her oral submissions, supplementing her own well-argued and clearly-written position statement. I agreed and the mother has duly given her oral submissions this morning.[8]In her answer, the mother outlined her defence to the application in the following terms:
"The mother opposes the father's application for a summary return of the child to the jurisdiction of Israel. The mother is the primary carer of the child and has been throughout his life. The child has special needs insofar as he suffers from periventricular leukomalacia and has done so since his premature birth. The child is fully dependent on the mother. The mother left Israel following serious psychological and emotional abuse at the hands of the father, including physical violence to property in her presence and threats of direct physical violence, and psychological and emotional abuse of the child. The child has witnessed severe psychological abuse of the mother and the frequent and violent rages of the father. It is not true that the mother came to England for a 'holiday', as stated in support of the father's application. With the father's consent, she came to England at the time of the crisis in the relationship due to the father's abuse and for respite. The father was fully aware of this and consented to it. The mother came to England for an indefinite and indeterminate period. Accordingly, the child was not wrongfully retained in England. The child has become habitually resident and is habitually resident in the jurisdiction of England and Wales. It is the mother's contention that a return of the child to the jurisdiction of Israel will place the child in grave risk of psychological or other harm and place the child in an intolerable situation. The mother and father live on a kibbutz. The father remains in the home on the kibbutz, which is the parties' shared property. It is not possible for the mother to return to that home or to the kibbutz community. The father further has made it clear on a number of occasions that the mother is 'not wanted' by the kibbutz community nor is she welcome to rejoin the kibbutz. The mother has sought medical assistance for the severe psychological harm that the applicant has caused her. The child cannot be returned to Israel and to mother's care; to do so would cause him emotional and psychological harm."
[9]The issues in the case are therefore as follows:(1) What was the nature of the parties' agreement when the mother and R came to England and Wales in February 2015?(2) Did the mother retain R in England? If so, when did that retention take place?(3) Following his arrival in the jurisdiction, did R integrate sufficiently to lose his habitual residence in Israel and form a habitual residence in this country?(4) Has mother established Article 13(b) exception, i.e. to establish that if R was returned to Israel, there is a grave risk he will suffer physical or psychological harm or otherwise be placed in an intolerable situation?[10]I am grateful to Mr. Gration for his summary of the law, which I readily adopt. The aim of the 1980 Hague Convention is expressed in the preamble as being to:
"... protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access."
[11]In an attempt to achieve this aim, the following specific objects are set out in Article 1:
"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure the rights of custody and of access under the law of the Contracting State are effectively respected in the other Contracting States."
[12]In order to obtain a return under the Hague Convention, an applicant must establish under Article 3 that(a) the child concerned was habitually resident in a Contracting State immediately before the wrongful removal or retention; and(b) that the applicant parent has, and was exercising, rights of custody at the time of the child's removal or retention. If those two matters are established, the Court must order the child’s summary return unless the respondent proves one of the exceptions to return provided under the Convention.[13]The exceptions are set out in Article 13,, which provide, in so far as relevant to this case, that:
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of a child if the person, institution or other body which opposes its return establishes that (a) the person, institution or other body having the care of the person of the child … had consented to or subsequently acquiesced in the removal or retention, or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
[14]The mother has not challenged the father's rights of custody. On the first issue, therefore, the father need only establish(1) that R was retained in this country and(2) that he was habitually resident in Israel immediately to that retention. "Retention" occurs when a child who has previously been for a limited period of time outside the state of its habitual residence is not returned to that state on the expiry of that period, per Lord Brandon of Oakbrook in Re H (Minors) (Abduction: Custody Rights) [1991] 2 AC 476. Thus, a lawful removal can become a wrongful retention if the child removed, for example, for a holiday with permission of the other parent, is then retained at the conclusion of the agreed period. The question whether there has been a wrongful retention and, if so, when it occurred, are questions of fact, per Wall J (as he then was) in Re S (Minors) (Abduction: Wrongful Retention) [1994] Fam.70.[15]In this case the evidence as to what was initially agreed between the parties consists of the written and oral testimony of the parties themselves, plus recordings of emails, What'sApp and other messages. Prior to their departure, there was some discussion with a social worker as to whether the mother should sign a document promising to return. The mother saw the social worker on the kibbutz and discussed the drafting and preparation and signing of such a document, but the father said it was not necessary. The clear picture that emerges from the evidence is that, when the mother and R left Israel on 16th February, it was agreed between the parties that it would be for a limited period. Although no firm date for their return was agreed and no return ticket purchased, the mother accepted that it was her intention to return. Evidence of the sort of period she was envisaging staying in England is derived from the fact that she purchased travel insurance for the period 16th February to 11th March, and left a copy of the written details of that policy on the table at home for the father. Subsequently, on or about 9th March, she extended that insurance to 1st April. In oral evidence the mother said that she had done this because the father was harassing her by constantly asking by email and other messages when she was returning, and that she had found that she had failed to recuperate from the strain she was feeling as a result of marital difficulties, as she had hoped she would recover when she came to this country. She had not, for example, regained any of the weight she had lost prior to their departure.[16]In her position statement, filed before the start of this hearing, the mother said that the date on which she believed she had resolved not to go back was 1st March, after being threatened by the father. That threat, which was uttered by the father in the course of a conversation he was having with R over the FaceTime mechanism, was that he had gone to a lawyer and had a document that said R could never be removed from Israel again. The father accepted that he had said that and that it was not in fact true. Be that as it may, Mr. Gration submits, and I accept, that, as 1st March 2015 was the date on which the mother resolved not to return R to Israel, that was the date on which, as a matter of fact and law, he was retained in this country.[17]The next question, therefore, is whether R had by that date lost his Israeli habitual residence and/or acquired habitual residence in England and Wales. The law on habitual residence is now to be found in a decision of the Supreme Court in A v. A [2013] UKSC 60, in which the Supreme Court held that the test applicable for the determination of a child's habitual residence is as established by the European Court of Justice in the case of Re A, (Case C-523/07) [2010] ECR I-14309. That was confirmed by a further decision of the Supreme Court in the case of Re L [2013] UKSC 75. The key principles to be applied when determining a young child's habitual residence are as follows.(1) Habitual residence is a question of fact.(2) A child's habitual residence is "the place which reflects some degree of integration by the child in a social and family environment in the country concerned".(3) That in turn depends on a number of factors, including the reason for the family's stay in the country in question.(4) The social and family environment of an infant or young child is shared with those on whom he or she is dependent.(5) In the case of older children, the enquiry must encompass wider factors and more than the mere surface features of child's life.(6) The parental intent does play a part in relation to the intent of a parent in relation to the reasons for a child's leaving one country and going to another.(7) The essential factual nature of the enquiry must not be glossed over by legal concepts.[18]It is abundantly clear that, prior to coming to this country R was habitually resident in Israel where he had been born and where he had always lived and where he was fully integrated into the social and family life of the kibbutz. In this case the mother's argument is that he lost his habitual residence in Israel and acquired habitual residence in this country prior to 1st March. I accept that R has close family links with this country and speaks English, but the other factor which the mother relies on in support of her case that R had been integrated into the social environment and family environment in this country occurred substantially after 1st March. Of course, as I have said, the mother and R were staying with her family and that is something to take into account, but it is significant, as Mr. Gration points out on behalf of the father, that R was not registered with the GP until some weeks later, after 1st March. That is significant because, given his health problems, one might have expected that to be a priority for the mother were she to be determined to ingrate R into the environment of this country immediately upon arrival. Furthermore, R did not start nursery until some weeks after 1st March. In addition, the mother did not obtain benefits for R at an early stage. She has given various explanations as to why that was so, but the fact is that no benefits or other State payments were made available for R prior to the tipstaff seizing the passports at the start of these proceedings, thereby precluding any application for benefits being made.[19]As at 1st March, and indeed thereafter, R was separated from his father and had few of his possessions here, the majority of them having been left in Israel. Given that the mother was still intending to return to Israel until 1st March, having at that stage been here for just two weeks, it seems to me to be manifestly clear that by that date R had not acquired habitual residence in England. He had not acquired a degree of social and family integration which would normally be expected to have established habitual residence in this country. The facts point in the other direction, that he remained habitually resident in Israel at that date.[20]I therefore conclude that R's retention in this country was wrongful and turn to the final question – whether the mother has established a defence under Article 13(b).[21]Following the decision of the Supreme Court in the two cases of Re S [2012] UKSC 10 and Re E [2011] UKSC 27, the principles to be applied when considering a request under Article 13(b) can be summarised as follows. Again, I quote from Mr. Gration's helpful summary:(1) The burden of proof rests upon the person opposing the child's return, upon whom the onus lies to produce evidence to substantiate the defence raised.(2) The standard is ordinary balance of probabilities.(3) The risk to the child must have reached such a level of seriousness as to be characterised as "grave". There is an ordinary language link between the application of this standard to the risk and to the harm caused. As Baroness Hale observed in Re E: "... a relatively low risk of death or really serious injury might properly be qualified as 'grave' while a higher level of risk might be required for other less serious forms of harm."(4) The situation that the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when he or she gets home.(5) There is an assumption inherent in the Convention itself that the best interests of children as a primary consideration are met though a return to their habitual residence following a wrongful removal, that assumption being capable of rebuttal only in circumstances where an exception is made out.(6) Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country.[22]Mr. Gration submits that, in accordance with the approach outlined by the Supreme Court, the court is entitled to commence its consideration of the defence by examining the matters raised by the mother and deciding whether they are sufficient to establish the Article 13(b) exception. If, when considered in that way, the mother's evidence is sufficient to establish the Article 13(b) exception, the court then turns to consider the available protective measures, which in most cases include undertakings offered by the parent who is seeking the child's return. If the available protective measures (including the undertakings offered) are sufficient to ameliorate the risk that it is asserted exists, then they negate the defence raised (such that the exception is found not to be established).[23]In this case the mother does not assert that R is at risk of any physical harm. She rests her case on the risk of psychological harm and emotional harm that will be caused to R if she and he are required to return to Israel where they will be exposed again to the father's behaviour. The mother characterises the behaviour as emotional abuse. She has described herself as being an emotional punch bag on whom the father took out all his frustration. She alleges that he continually undermined her self-esteem. She relies on the incident in which he became annoyed at her at Yom Kippur last year when, as he accepts, he felt insulted by what he perceived as her lack of respect for his religious beliefs and observances, and how he (on her account, which I accept, having heard the evidence of the parties) waved the fork menacingly in her direction and said she would be killed before she got to the airport if she attempted to leave with R,. she also relies on how subsequently he behaved in an aggressive and domineering way to her, illustrated in particular by a recording of a telephone call made by the father alongside, and in similar vein to, a phone call made by his own father (who had also moved to the kibbutz) in which each of them castigated the mother for removing R to this country, in highly abusive and profane language. Having heard the tape and read the transcript, I regard the father's behaviour on that occasion as reprehensible, and, in the circumstances, his expression of regret in the witness box was the least that could reasonably be expected. The father's manner in the witness box was indeed arrogant and egocentric and consistent with the mother's descriptions. I accept that he has been angry, and the mother's case that he has lost his temper in circumstances which have on occasions been witnessed by R, and caused R distress.[24]In closing submissions, the mother said that the hectoring tone adopted by the father and his own father both before her departure from Israel and subsequently arrival in this country, and in particular in the email and other messages, brought her close to a breakdown. As a result, she consulted an organisation called Jewish Women's Aid in east London, who prepared a report for the solicitors then acting for her, in which the author of the report expressed her professional opinion that the mother presented as a typical victim of domestic violence. She pointed out that her version of events remained consistent and that it was therefore believed that she was a good mum who just wanted to keep herself and her son safe. Further, the Jewish Women's Aid organisation referred the case to the local authority, and a multi-agency risk assessment conference was carried out on 3rd April, at which the risk was analysed still further.[25]In the circumstances, it seems to me that the mother has gone some way to establishing that without protective measures there may be a grave risk that R will suffer psychological harm or otherwise be placed in an intolerable situation were he to be returned to Israel. But the court must then consider the protective measures that have been proposed. In this case the father has offered a comprehensive list of undertakings which he is willing to give to the court in the following terms:(1) The father will not seek to separate the child from the mother.(2) The father will not initiate or support any criminal proceedings against the mother in relation to the child's wrongful removal or retention and he agrees to inform the police that he does not wish to pursue the criminal complaint that he had previously made.(3) The father will not seek to pursue any punitive civil remedy designed to punish the mother for the wrongful removal or retention of R in England.(4) On a wholly without prejudice basis and without any admission, the father agrees not to be abusive towards the mother and child.(5) The father will pay for R's one-way economy flight back to Israel.(6) The father agrees to vacate the family home and provide the mother and child with exclusive occupation of it.(7) The father will continue to retain medical insurance for the mother and child.(8) The father will pay for the child's day care costs.(9) The father will retain and pay all existing standing orders set up on his bank account in respect of household costs until the first inter partes hearing of any proceedings before the court or for two months (extended in closing submissions to three months) after the return, whichever is sooner. If no proceedings were issued by either party within that time period, then the parties, on the father's proposal, would review this arrangement further.(10) The father will provide the mother with the use of his car whenever possible. He acknowledges that it will be required in particular when R has to attend for therapy.[26]It is notable that these undertakings were in similar terms, save for one or two other matters, to those requested by the mother in her statement drafted at a time when she was represented by experienced solicitor and counsel. In my judgment, these undertakings do amount to protective measures so as to provide strong protection to the mother and R - sufficiently strong, in my view, to preclude a grave risk of R suffering psychological harm or being placed in an intolerable situation. The mother and R will be returned to the kibbutz, a community, I am told, of 600 to 800 people. Many on that kibbutz do not speak English, but others do. In closing submissions the mother went so far as to describe the kibbutz as an open prison, but earlier in evidence and again in submissions she told me that she had a number of close friends with whom she has remained in contact since her arrival in this country. I do not therefore accept, on the basis of what I have seen, that she would be isolated or ostracised, as she claims, if forced to return to the kibbutz. In addition, as one would expect, there are support services within the community, including a social worker, with whom, as set out above, the mother was in contact prior to her departure to this country in February. There is also a social manager responsible for providing further services. There is therefore, to my mind, evidence of a significant support structure, and I am satisfied that the mother would receive support in the circumstances of her return. Furthermore, to provide further protection for the mother and R, in my judgment, it is important for copies of this court order, including the father's undertakings and a transcript of this judgment to be delivered to and held by those two individuals on the kibbutz.[27]The mother said in closing submissions that the thought of going back to the kibbutz filled her with dread. If I ordered her and R to return, she said that I would be returning her to what she had run away from. I understand her position and have some sympathy for it, but, having said that, Article 13(b) provides a high hurdle. The court's role, as I have spelt out to her repeatedly in the course of these proceedings, is limited. Once the undertakings have been proffered – and I accept those undertakings from the father – I cannot accept that, by returning R to the jurisdiction of Israel with the benefit of those undertakings, he will be exposed to a grave risk of psychological harm or placed in an intolerable situation.[28]I therefore conclude:(1) that the mother retained R in this jurisdiction on or after 1st March 2015 at a point where he was habitually resident in Israel and that her retention of him in this country was therefore in breach of the father's rights of custody and wrongful, and(2) on the basis of the undertakings offered by the father, which I accept, the mother has failed to establish the defence under Article 13(b). Given the undertakings offered, I do not consider that ordering R's return to Israel would give rise to a grave risk that he would suffer psychological harm or otherwise be placed in an intolerable situation. I therefore order that R be returned to Israel forthwith. I consider that this will be effected if he is returned by 15th August.[29]It is a condition of my[30]I conclude with these observations. It is plain to me, although I have no role in determining future decisions about R's welfare, this mother is an excellent and caring mother who has put R as her number one concern, as she has maintained throughout the hearing before me. The father has recognised that in his oral evidence. As I have repeatedly said to the mother, the role of this court on an application under the Hague Convention is limited. It is not my function to make welfare decisions about R's long-term future. That must either be agreed by the parties or, in the absence of such agreement, be the subject of further proceedings in Israel. This court's role is limited to the application under the Hague Convention. For the reasons set out above, I am satisfied that the father's application must succeed and I therefore make the order as indicated.

order

(1) that the father signs written undertakings in the terms set out above;(2) that he informs the police before R's return that he does not wish to pursue the criminal complaint he had previously made, and obtains written confirmation from the police that they have received such notice from him;(3) that he lodges copies of this order, including the undertakings proffered, signed by him with the social worker and social manager named above before R is returned to Israel; and(4) that a copy of this judgment as transcribed be submitted to the social worker and the social manager at the kibbutz as soon as it is available.