D (A Child), Re [2015] EWHC 3434 (Fam)

[2015] EWHC 3434 (Fam)Case No FD15P00117
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Monday, 9 th November 2015
Before
HER HONOUR JUDGE FINNERTY(Sitting As A Deputy High Court Judge)(In Private)
B E T W E E N:
Between
OYApplicantAYRespondent
Transcriber 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
MS. P. SCRIVEN QC and MS. R. AMIRAFTABI (instructed by Goodman Ray Solicitors) appeared for Applicant.MS. L. STONE QC and MR. A. CAMPBELL (instructed by Williams & Co. Solicitors) appeared for Respondent.
J U D G M E N TJUDGE FINNERTY:
[1]I am concerned with one child, D, who was born on 21st October 2012. She is now three. Her father has the benefit of public funding and is represented by Ms. Scriven QC and Ms. Amiraftabi. The mother is represented pro bono by Ms. Stone QC and Mr. Campbell. At this final hearing each parent seeks primary care of D pursuant to a child arrangements order under s.8 Children Act 1989. In addition, the mother seeks permission, pursuant to s.13 Children Act 1989, to remove D permanently from this jurisdiction to Israel.[2]The catalyst for these proceedings was the removal of D from this jurisdiction to Israel by the mother on 9th March 2015 without the permission of the father. Thereafter he issued proceedings in this jurisdiction and in Israel. On 12th March 2015 the father was granted an order by the Israeli court which prohibited the mother and D from leaving Israel. On 13th March 2015, within this jurisdiction D was made a ward of court and the mother was ordered to return D to this jurisdiction within seven days of the order being served upon her. In addition, the father issued divorce proceedings in the Rabbinical court in Israel.[3]Thereafter, parallel proceedings continued in the two jurisdictions. On 15th April 2015 there was a contested hearing in the Jerusalem Family Court where live evidence was heard from the parents and from the paternal grandmother. The court was then informed that the parents had resolved their issues and had reached an agreement. Important terms of the agreement included the following: the parents were to divorce; the mother was to return to the jurisdiction of England and Wales with D no later than 20th April 2015; upon return, the mother was to be the primary carer of D pending a welfare decision by the English court; upon the return, the mother and D would live in the former matrimonial home, which would be vacated by the father, or in alternative accommodation in an orthodox Jewish neighbourhood; the father would be responsible for paying the rent on either the former matrimonial home or the alternate accommodation for a period of two months from the date of return; the father would withdraw his criminal complaint against the mother in respect of the abduction.[4]After this, the mother continued the parallel litigation, pursuing all her routes of appeal through the Israeli courts and seeking stays and/or extensions of the return dates of D ordered within this jurisdiction. The end of that process was reached in May 2015. On 18th May 2015, the Israeli Supreme Court refused her appeal and ordered her to return to the jurisdiction of England and Wales by 26th May 2015.[5]On 26th May 2015 the mother and D flew into Luton airport accompanied by a lawyer instructed by the father. The mother was granted leave to enter as a visitor. She is prohibited from employment or recourse to public funds.[6]Pausing there, it is the father's position that, following her unlawful removal of D from this jurisdiction until her return on 26th May 2015, the mother was being deliberately obdurate and difficult and disrespectful of court orders. It is his submission that this attitude is further evidenced by the lies which the mother accepts she told to the Jerusalem Family Court about the extent of the father's knowledge of and agreement to the removal of D from this jurisdiction.[7]The mother asserts that she was neither obdurate nor difficult nor disrespectful of Court orders but that she was genuinely frightened to return for a number of reasons. Firstly, she was fearful that she would be refused leave to enter the United Kingdom because of the irregularities in her immigration position, and would thus be separated from D at the airport. On 21st May 2015 she had flown into the United Kingdom alone by way of a trial run, presenting both her US and Israeli passports, and was refused leave to enter. Secondly, she was fearful that if she were permitted to enter the United Kingdom she would be arrested because of the complaint which the father had made to the police about the abduction of D. It is common ground that in spite of the agreement in the Jerusalem Family Court the father did not withdraw the criminal allegations against the mother until 13th May 2015. Thirdly, she was fearful that if permitted to enter this jurisdiction she would be ostracised within the Jewish community because she had been told that there were rumours being spread about her that she had committed adultery. It is clear from the transcript of the evidence heard by the Jerusalem Family Court that the paternal grandmother had given evidence that the mother was having an affair with a taxi driver.[8]Thus there is evidence to support the mother’s case on this issue. I am satisfied that she was genuinely fearful of returning to this jurisdiction with D for the three reasons which she explained in her evidence.[9]In accordance with the agreement reached in the Family Court in Jerusalem, the father vacated the former matrimonial home, however the mother felt unable to return to that area of London, because she was scared of the reaction from that community towards her.[10]On 4th June 2015 it was agreed at court that the mother would find alternative accommodation for herself and D in a nearby Jewish neighbourhood, funded by a Jewish charity, on condition that the mother regularised her immigration position. It is the father's case that, in spite of this agreement, the mother has failed to regularise her immigration position and has dissipated the funds made available to her by the charity by failing to secure a settled address, preferring to move from one temporary address to another.[11]The mother did secure immigration advice from a solicitor at Bindmans called Emma Cohen, who met with the mother on 25th June 2015. Her initial advice reads:
"... it is my view that no action is required at present in relation to your immigration status and that in the light of the circumstances, if an application were to be made at this time it might well be refused."
Therefore it is not correct that the mother did nothing to regularise her immigration position.[12]As to accommodation, the evidence suggests that the mother was either unable to secure a short-term tenancy in a nearby Jewish neighbourhood, in spite of the best efforts of her solicitor, or unable to identify property which was acceptable to the paternal family, or was offered accommodation through the paternal family which was unacceptable to her, for what, in my judgment, were reasonable reasons; for example, a room in a home owned by a friend of the paternal grandmother (the woman who had told the court in Jerusalem that her daughter-in-law was an adulteress) where she would not have been allowed to use the kitchen or to bring food into the accommodation.[13]It was the father’s case that the mother has deliberately been living a destitute lifestyle since her return to this jurisdiction in order to gain litigation advantage. I specifically reject that suggestion. Her situation is a direct result of her immigration status, to which I will refer later in this judgement.[14]The critical, dismissive attitude of the father towards the mother was a striking feature of his oral evidence as a whole. He appeared to be completely without empathy or sympathy for the very difficult position in which the mother and his daughter had found themselves since their return to this jurisdiction.[15]The mother's precarious immigration, housing and financial situation following her return to this jurisdiction might have been expected to secure a speedy final judicial determination of the welfare-based applications before the court. Sadly, no. On 10th July 2015, Mr Justice Mostyn listed the final hearing for five days commencing 19th October 2015, a delay of three months. He also directed that a CAFCASS report was not necessary to determine the issues arising at the final hearing, which are of course welfare-based decisions.[16]This final hearing has presented something of a forensic challenge in that there was clearly an urgent need for a final determination of the applications. The mother was to be homeless again come the final day of the hearing and her leave to remain in the jurisdiction was to expire on 25th November 2015. However, there were fundamental gaps in the information before the court. CAFCASS had not been directed to carry out safeguarding checks and the information about the mother’s immigration position and the enforceability in Israel of orders made in this jurisdiction was inadequate. Doing the best that could be achieved in those difficult circumstances, I heard evidence over four days from both parents, the maternal and paternal grandmothers, and the father's fiancée, EF. The case was then adjourned to enable the further information to be gathered. It was hoped that this could be achieved expeditiously to permit a final judgement to be delivered before the mother’s visitor visa expired. The case was adjourned to 9th November 2015 to be heard by way of a video link with my principle court in York, with provision for counsel to file their final written submissions by 5th November 2015 subject to amplification on the 9th November 2015.[17]In fact the hearing on the 9th November 2015 was listed at the Royal Courts of Justice. To assist the parties, it had been my intention to deliver a final judgement on that day. Unfortunately, I arrived at Court to be informed that CAFCASS had not allocated the case. It was the joint submission of Ms. Scriven and Ms. Stone that, in the absence of safeguarding checks, I could not make Child Arrangements orders. As the mother’s permission to visit the United Kingdom will expire shortly, I will proceed to give a judgement in relation to the Application pursuant to s13 Children Act 1989, and return to the Applications pursuant to s8 Children Act 1989 at another time. That is the context of this judgement.[18]I turn now to an explanation to the parents about my practical approach to their respective applications. Within their written and oral evidence, the witnesses raised a number of issues which were clearly of significance to them, some of which were pursued by counsel within their final submissions. Some of those issues were not integral to my decision-making. Within this judgment I have ignored those issues which I regard as peripheral and have concentrated upon those issues which, in my judgment, require determination to reach a final decision on the applications before the court. However, at the conclusion of this judgment, I will give an opportunity for Ms. Scriven and Ms. Stone to identify any issues which I have not dealt with and which they would invite me to deal with.[19]I turn now to the essential factual background. The mother and father are aged respectively 22 and 23. Each of them had an orthodox Jewish upbringing - the father in London and in Israel, and the mother in Israel. The father is a British citizen. The mother has dual Israeli and US citizenship. The couple entered into an arranged marriage in Israel, having met only twice. In accordance with custom they spent no time alone together before their wedding. In accordance with custom, following the marriage, the father moved to live in the mother's country of origin, and just 10 months after their marriage D was born. She has dual UK and Israeli citizenship.[20]From the very beginning the married life of this young couple presented them with a number of challenges. The father found it very difficult to secure permanent employment in Israel. The parental sexual relationship was very problematic. The mother's pregnancy was difficult. She was forced to spend the last two weeks of that pregnancy in hospital. She had to have an emergency caesarean. D was born with a very low birth weight and had to spend the first three weeks of her life in the special care baby unit of the hospital. The father had a difficult relationship with the maternal grandfather. Although both orthodox Jews, each parent struggled with the other's style of religious observance.[21]Perhaps inevitably these challenges placed a strain upon the parental relationship, and eventually, in April 2013, they relocated to the United Kingdom hoping for a fresh start. The parents disagree as to whether the move was intended to be temporary or permanent, and also disagree as to which of them was the instigator of the move. What is clear, however, is that before the move to the United Kingdom no application was made for the mother to enter this jurisdiction on a spousal visa. It was unchallenged evidence that the mother can neither read nor write English. She was reliant upon the father to submit the relevant application and supportive documentation to secure a spousal visa for her. It was her evidence that she understood that no application was made because the move to the United Kingdom was intended to be a temporary one and a visa application would be expensive. The father's position was that although the move was intended to be a permanent one, he thought, incorrectly, that an application for a spousal visa could not be made until the mother attained 21. He failed to take any legal advice about this.[22]When the mother arrived at the airport in the United Kingdom for the first time, she was permitted entry as a visitor for six months and maintained that status thereafter by leaving and re-entering the United Kingdom at six-monthly intervals. She was in breach of her conditions of entry, being actually resident in the United Kingdom and for a period working outside the home in a nursery.[23]Eventually, in the summer of 2014, the father prepared a spousal visa application for the mother, which she signed. The application was refused for a whole raft of reasons set out in the document:
"You state that your sponsor is a British Citizen but have provided no evidence in support of this. When we contacted your sponsor he stated that he lives in Israel with you. Your sponsor is not in the UK and there is no evidence that he is able to reside in the UK with you as your partner. There is no evidence that your sponsor is not (sic) present or settled in the UK or can be admitted for settlement on the same occasion as you. I therefore refuse your application under paragraph EC-P.1.1(d) of Appendix FM of the Immigration Rules, (E-ECP.2.1). You state that you married your sponsor in 2011. Whilst you have submitted what you state is a marriage certificate, this has not been officially translated. Therefore, you have not provided evidence that you are married to your sponsor as stated or that your marriage is valid. I therefore refuse your application under paragraph EC-P.1.1(d) of Appendix FM of the Immigration Rules, (E-ECP.2.7). You state that you wish to settle with your sponsor. You state that you meet in May 2011, your relationship began in August 2011and that you married in December 2011 but have provided no evidence in support of this. You state that you live as husband and wife in Israel since your marriage but have provided no evidence in support of this. You have submitted some photos but these are of your wedding only. You state that you and your sponsor have a child but have provided no evidence in support of this. There is no evidence that you are in a relationship with your sponsor as stated. I therefore am not satisfied that your relationship with your sponsor is genuine and subsisting or that you intend to live together permanently in the UK. I therefore refuse your application under paragraph EC-P.1.1(d) of Appendix FM of the Immigration Rules, (E-ECP.2.6 & 2.10). Your sponsor is exempt from meeting the requirements of paragraph E-ECP.3.1 as they are in receipt of carer's allowance. You state that you have lived together since your marriage in Israel. It is therefore unclear how or why your sponsor is entitled to this allowance. In order to meet the requirements of these Rules you and your sponsor must be able to maintain and accommodate yourselves and any dependents adequately in the UK without recourse to public funds. You have submitted a letter from his employers stating that your sponsor has been employed as an admin assistance on a permanent basis since May 2013 with a weekly salary of £100 in cash. You have submitted no evidence to support this. Furthermore, when we contacted your sponsor on 05.11.14, he stated that you live together in Israel and that you will move to the UK together once you have a visa. It is therefore, unclear how your sponsor has been in permanent employment in the UK when he lives in Israel. You have submitted a letter of employment from the M Nursery stating they will employ you as a nursery worker but there is no evidence that you are qualified for such a position. Furthermore, there is no evidence that you were interviewed for this position and therefore, how you have chosen for this role or why a company would hold open a position for you until you receive entry clearance to ultimate UK. On the evidence provided, I am not satisfied that you and your sponsor are able to maintain and accommodate yourselves and any dependents adequately in the US without recourse to public funds. I therefore refuse your application under paragraph EC-P.1.1(d) of Appendix FM of the Immigration Rules, ( E-ECP.3.3(b). I have also considered whether the particular circumstances set out in your application constitute exceptional circumstances which, consistent with the right to respect for family life contained in Article 8 of the European Convention on Human Rights, warrant consideration by the Secretary of State of a grant of entry clearance to come to the United Kingdom outside the requirements of the Immigration Rules. I have decided that they do not. I have therefore refused your application because I am not satisfied, on the balance of probabilities, that you meet all of the requirements of the relevant Paragraph of the United Kingdom Immigration Rules."
[24]For reasons which the father failed to explain in a comprehensible manner from the witness box, he gave this inadequate, misleading and in some instances untruthful information to the immigration authorities, which in my judgment made the refusal of the visa application almost inevitable. I am unable to make a finding to the requisite civil standard of proof as to why the father drafted the visa application in this way; whether this was a deliberate act on his part to disadvantage the mother and ensure that she remained under his dominance, or whether it was sheer incompetence. I suspect it was the former. The decision was never appealed. In evidence, the father stated, “Why bother to sort out her visa if we are going to counselling?”.[25]There is no doubt that the absence of a spousal visa has created the very difficult situation which has faced the mother and D since their return to this jurisdiction in May 2015, having no recourse to public funds and the mother being unable to work; a situation which is wholly incompatible with the basic welfare needs of D. In evidence, the father accepted no responsibility for this situation, “I have dealt with her visa. The fact that she has problems now is not my responsibility, it is her responsibility”.[26]It is common ground between the parents that the move to the United Kingdom did not introduce happiness into their marriage, and it is clear that the refusal of the spousal visa resulted in a further deterioration in their relationship. The parents received the news whilst on a trip to Israel in November 2014. No doubt worried that the mother would be refused entry as a visitor on her return from that trip, the parents and D travelled back to the United Kingdom via a very circuitous route indeed: Israel, via Antwerp, via Ireland, via City Airport in London.[27]The parents agree that there was an incident on the plane involving D. The mother asserts that the father lost his temper with the child, who was over-tired, that he tried to force her to sleep by holding her down, and that when D protested he smacked her on the face and hands. The father asserts that the mother has completely twisted the events that occurred on the flight. He recollects that they both tried to persuade D to go to sleep, that it was the mother who used force whilst all he did was to carry D to the front of the plane to attempt to soothe her. The burden of proving their respective accounts rests upon each parent to the civil standard of proof. Very sadly, as I have already highlighted in this judgment, both parents have demonstrated an ability to lie. The mother to the Jerusalem family court, the father to the Immigration authorities, and I find myself in a position of being unable to rely upon any uncorroborated or unsupported evidence from either of them. However, I make it clear that, even if the mother's account were to be established on evidence which reached the civil standard of proof, it would establish a loss of control by a young father in the context of an arduous and stressful journey with a very young child. That would not, in my judgment, lead to a finding that the father presented a risk of harm to D.[28]In my judgment, the relevance of the evidence about November 2014 is the events which followed the family's return to London. It is common ground that when they eventually arrived the mother went to the home of the paternal grandmother in a state of distress, described by the paternal grandmother as, ‘dishevelled, with D and suitcases’. She told the paternal grandmother that she was frightened of the father who had hit D on the plane. It is common ground that the reaction of the paternal grandmother to the mother's distress was to send the young woman off to read some Psalms and to refuse to permit her to sleep separately from the father under her roof, without advice from a Rabbi. In my judgment this snapshot of the mother’s experience supports her account of feeling isolated and unsupported within the paternal family, as did the evidence from the father about the paternal family speaking in Yiddish which was not understood by the mother.[29]Eventually, the maternal family in Israel became involved and it was agreed that the two extended families would pay for the young couple to have some marriage counselling. Unfortunately, this was not successful. The marriage continued to disintegrate. It is common ground that in March 2015 the mother spoke to the father about wishing to go to Israel to visit her family. He declined to go with her, and that appears to have been the catalyst for her removal of D on 9th March 2015.[30]It was the mother's evidence that all the arrangements for the trip were arranged and funded by an aunt who lived in America, that they were driven by taxi from England to Holland by a Mr. L, and that she took a flight from Amsterdam to Israel. Mr. L is the person identified by the paternal grandmother to the Jerusalem Family Court as the man with whom the mother was having an affair. No one has asserted to me that there was any truth in that allegation. In her evidence the paternal grandmother said, ‘I do not know if she had an affair with this man’.[31]I am unable to decide whether the mother's evidence as to the arrangements surrounding the trip to Israel are the truth or whether her intentions were to stay in Israel for a holiday or permanently. However, I am satisfied that she made the trip without informing the father; that she avoided calls from him when she and D were en route; that the maternal grandmother told lies to the father about where D and the mother were, stating that they were with family members locally when, in my judgment, she must have known that they were in Israel or en route to Israel. The reaction of the paternal family was swift and final. The father immediately applied to the Rabbinical Court in Israel for a divorce. He made a complaint of child abduction to the police. The paternal grandmother denounced the mother as an adulteress to the Jerusalem Family Court.[32]As soon as the mother returned to this jurisdiction, she went straight to the police station to make a number of serious allegations about the father's behaviour towards her and D. In her written submissions, Ms. Stone suggested that the mother's allegations ‘were not particularly important to the decision-making process about the applications before me.’ I disagree. In my judgment, if it were to be established on evidence that reached the civil standard that the father had behaved towards the mother and D in the way in which she described in her complaint to the police and in her third statement to this court, it might be suggested with some force that the father presented a risk of harm to D. A flavour of the complaints can be gleaned from three entries in the bundle. "[1] On TUESDAY 26th May 2015 V1W1 attended the POLICE STATION front office with her daughter to report physical abuse and sexual abuse. When asked to provide more detail, V1W1 and calmly responded saying she had been beaten and raped over a period of time by her ex-husband when they were together and the daughter had been beaten by the ex-husband. CID were spoken to about the allegation and informed that Sapphire should be contact in regard to the allegation, Sapphire were then contacted prior to conducting a report and DS Smith was advised over the matter and explained an SOIT officer has been assigned to deal with V1W1 and conduct further investigation into the matter and would just require a CRIS report and MERLIN to be completed and further investigation would be conducted by themselves. The allegation of abuse begins when V1W1 and SUS1 were married in DECEMBER 2011 in Israel through an arranged marriage organized by both parties parents who's details were not provided. They have one daughter which is currently in custody of V1W1 and appeared safe and well when seen. Approximately a month after the marriage SUS1 started physically assaulting V1W1 by beating her with anything he could reach [2] such as mobiles which were said to leave bruises on her body in places which could be covered up and sexually assaulting by raping her during numerous occasions however V1W1 did not explain how many time this would occur in a week. V1W1 stated that believed that this was being done due to something being wrong with SUS1 due to the fact they were living in Israel and his upbringing was in the UK. Approximately 16 months after, around APRIL of 2013, V1W1, SUS1 and daughter decided to move to the UK into a flat in E5, which V1W1 states was in close proximity to where SUS1's parents lived and believed that this would resolve the issue. V1W1 said the sexual and physical abuse continued soon after moving with regular incidences during a week, during this time in the UK V1W1 spoke to three friends about the abuse. The three friends live in the UK and had experienced similar incidences and they remained silent over the matter and spoke to no other persons about the incidents. However all three friends want to remain unanimous [sic] due to community retaliations. The abuse continued over the following 2 years with continual physical assaults by beating, sexual assaults by rape and threats to harm and kill both V1W1 and the daughter. V1W1 then left the UK after having been assaulted in front of her daughter which occurred when she got up at night to feed the daughter and SUS1 started punching her in the stomach. V1W1 made her way back to Israel with the daughter to stay with friends around March 2015. VIW1 has returned to the UK on 26/05/2015 as she needed to attend court on the 29 of MAY 2015. [3] She said on one such occasion he had been running a bath. She said she was checking the water temperature and realised he had only put the hot tap on, so she added some cold water to it. She said he came to her and he tried to slap her face, she said she put her arm up to protect herself at which point he punched her in the face causing her to bleed from the nose. She said she fell back and worried that she may fall in the hot bath but didn't. She said she didn't tell anyone about what happened. She said when she went to the GP he would go with her. She said she told the doctor sex was hurting her and the doctor told her she did not relax enough and she should try to use KY jelly. She also mentioned another occasion just after their daughter started crèche in 2014 when she said the suspect slapped their daughter around the face 4 or 5 times after she had eaten chocolate and got messy. She said their daughter ran to her crying, she calmed her down. She said their daughter had a black bruise mark to her face. She said their daughter was almost 2 years old at the time. They went to their fathers place (whose father is unknown but this will be checked) and apparently he had asked how their daughter had got the mark to her face. Apparently the suspect said the daughter was just clumsy."[33]As with all allegations, the burden of proving them rests upon the mother. There is no evidence to corroborate or indeed support the allegations which she has made, which are effectively based upon her self-reporting of alleged historical events. It is submitted by Ms. Stone that the mother was inhibited from speaking out about her abusive experiences contemporaneously because of the culture in which she was living in general, and within the extended paternal family in particular, where she would have no audience and no sympathy. Ms. Stone also submits that the mother was inhibited from speaking out contemporaneously because of her precarious immigration status which the father used as a weapon to maintain her silence.[34]I have given those submissions appropriate weight and consideration. I have already indicated that because of the lies which the mother accepts she has told, I cannot accept anything that she says which is uncorroborated or unsupported. However, Ms. Scriven invites me to go further than a finding that the allegations are not proven to the requisite standard of proof and to find that the allegations are straight lies and are a demonstration of the lengths to which the mother is prepared to go to undermine the relationship between D and her father. The accounts given by the mother about her alleged experiences are full of inconsistencies. I give but three examples; there are more. First, the mother sets out her account of the information which she gave to the police on 26th May 2015. This account differs significantly from the information contained within the police disclosure. For example, to the police the mother alleged that she left the United Kingdom after having been assaulted in front of her daughter, which occurred when she got up at night to feed the daughter, and the father started punching her in the stomach. She said that she made her way back to Israel with her daughter to stay with friends around March 2015 - an account, as far as I am aware, that has never been repeated by her anywhere in the evidence before this court.[35]The second example: in examination in chief the mother said that two weeks after her return to the United Kingdom in May 2015 she visited the father’s area of London to visit a friend and three men threw eggs at her. In her statement, dated 6th July 2015, that is, after the incident referred to in her oral evidence, she says, "I am now scared to the return to the neighbourhood as I will get verbally abused in the street and get eggs and stones thrown at me and spat on" - "the neighbourhood" being a reference to the father’s area of London. In the mother's statement of 7th September 2015 she says, "On one occasion whilst in the father’s area of London, a member of the community threw eggs at me for disclosing the violence and allegedly bringing shame upon the community"; so three completely inconsistent accounts.[36]The third example: in her oral evidence the mother said that she had complained about her ill treatment within the family therapy funded by the extended family members between November 2014 and March 2015. There is a document in the bundle from the family therapist involved with her, Ms. I, which contradicts that account.[37]Ms. Scriven also invites me to place weight upon the timing of the mother's allegations made when she was forced to return to this jurisdiction, and the evidence of her stance before the Jerusalem Family Court where she agreed to the father having unsupervised contact to D. I accept her invitations.[38]Looking at this part of the evidence as a whole, I find that the mother is not being truthful in the allegations which she has made against the father about his ill treatment of her and of D. What is the relevance of that finding? Does it, as submitted by Ms. Scriven, demonstrate an attempt to interfere with the relationship between D and her father? Judicial experience demonstrates that people lie for all sorts of different reasons. It is clear that the mother's allegations were made at a time when she was feeling very vulnerable and angry. Forced to return to this jurisdiction as a divorced woman, with temporary leave to remain, who had been reported to the police for child abduction, denounced to the Family Court in Jerusalem as an adulteress, worried that she would be separated from D. Her lies are abhorrent to this court. However, in my judgment they are as consistent with the actions of a frightened, and desperate young woman as those of a deliberate schemer intent on undermining the relationship between D and the father. I note that there is no evidence from those who have observed D that she has anything other than a good relationship with her father, which leads this court to infer that, whatever her own views of the father, the mother has not sought to use her position as primary carer for the child to undermine the child's relationship with the father - sadly, a feature of many of the cases which come before the court.[39]Since the mother's return with D to this jurisdiction the father's contact has been pursuant to two defined orders of this court. Three times following such contact - 8th June, 10th August and 4th September - the mother has presented D to hospital complaining of alleged injuries suffered during contact, including bruising, nappy rash and redness to the vagina. I repeat that the burden of proving these alleged injuries rests upon the mother. On the evidence before me, there is no medical or other justification for those medical attendances. Ms. Scriven submits that the unnecessary presentations of the child to hospital by the mother are a clear attempt by her to undermine the father's contact.[40]On behalf of the mother, Ms. Stone reminds me that since the mother's return to the jurisdiction she has been in a particularly isolated and vulnerable position; that she is clearly very worried about the situation in which she finds herself, overly anxious and worried about D, about D's health and welfare, and that the presentations of D to the hospital on those three occasions are consistent only with an over-anxious mother with no support and no one with whom she can share her worries. In relation to that aspect of the evidence, I prefer the submissions of Ms. Stone.[41]I turn now to the law. Both Ms. Scriven and Ms. Stone have drawn my attention to, and rely upon, the recent judgment from the Court of Appeal Re F (A child) (International Relocation Cases) [2015] EWCA (Civ) 882. I have read Re F with some care and, for the sake of transparency, will set out my understanding of it.[42]The welfare of D is my paramount consideration, and in order to determine which of the proposals before the court is most consistent with her welfare, I must carry out a global holistic welfare evaluation of each of the proposals. In addition, I must undertake a proportionality evaluation of the mother's application pursuant to s.13 of the Children Act 1989. In respect of the cross-applications pursuant to s.8 Children Act 1989 I must have regard to the welfare checklist set out in s.1(3) of that Act. Although that checklist is not mandatory in a consideration of the application pursuant to s.13, it might also provide assistance to the welfare evaluation, as might reference to the questions identified by the Court of Appeal in Payne v. Payne [2001] Fam 473.[43]In addition to Re F, Ms. Stone supplied a list of other authorities for my consideration: K v. K [2011] EWCA (Civ) 793; Re F [2012] EWCA (Civ) 1364; Re F and H (Children) [2007] EWCA (Civ) 692; Re G [2012] EWCA (Civ) 1233. I confirm that I have considered all those additional authorities.[44]Within her final written submissions, Ms. Scriven has identified four placement options for D which the court should consider:(1) with her mother in this jurisdiction under a child arrangements order with a refusal of the application under s.13;(2) with her father under a child arrangements order;(3) a refusal of the application pursuant to s.13 with the parents to share the care of D;(4) with her mother in Israel.[45]Options (1) and (3) are not promoted by either parent. In my judgment, that is entirely sensible of them as neither is a realistic option. Neither parent suggests that the mother's enforced, insecure, impoverished, isolated lifestyle since 26th May 2015 is consistent with the welfare needs of D. It is now clear from the most recent advice from Emma Cohen that the mother's immigration status is unlikely to be regularised in the very near future. In her final submissions, Ms. Stone described the suggestion that the mother and D should continue as they are any longer as a “logistic, social and economic nightmare for the mother”. I agree with that description and I am satisfied and find that the mother's anxiety and distress about her situation, which was apparent during the course of the hearing, would be escalated by the knowledge that she was stuck in this jurisdiction against her will, forced to live a destitute lifestyle with no guarantee that she would be granted leave to remain here. I would be very concerned, if that situation was to continue, that D's need would not be met by her mother, presenting a risk of harm to her, which would not be mitigated by contact with the paternal family, whom the mother might blame for her predicament and who, on my findings, are unsympathetic to the mother in any event. I would be very concerned that the mother's distress would interfere with her ability to parent D and would increase the risk that she would discourage a relationship between D and her father.[46]The suggestion that the parents might share the care of D is, in my judgment, wholly incompatible with D's welfare. The parents have been unable to agree about where the mother and D should live since their return to this jurisdiction. They could not agree about the suitability of some clothing purchased by the father for D. The mother has moved away from an orthodox Jewish lifestyle. The inability of the parents to agree about the most basic issues and the extreme contrasts in their lifestyle, would put this little girl in the middle of a conflict between parents who would not be able to agree about the most fundamental of lifestyle choices: dress, education, exposure to newspapers and television. In my judgment, the suggestion that the parents might share the care of D would doom this little girl to a childhood of arguments and perhaps even litigation. In my judgment, the only two realistic options before the court are options (2) and (4).[47]Option (2) is a child arrangements order in favour of the father. Through Ms. Stone the mother made clear that if that were the decision of this court, she would remain in this jurisdiction for as long as she could, that is unless or until she were deported. The benefits to D of the father's proposals are rehearsed by Ms. Scriven in her final written submissions. For the benefit of the parents, I read them out:
"79. The father seeks a child arrangements order which provides for D to reside with him and to spend time with the mother. Her contact with D if she is in this country could be generous and frequent. If she were to return to Israel he proposes she could have staying contact 3 times per annum in England and 3 times per annum in Israel. It is the father's case that he can best meet D's needs for a stable and secure home environment. He has an established home and support network with which D is very familiar. He also states that he is the parent who can best meet D's emotional needs by supporting and promoting D's relationship with both parents. Significantly the father remains a member of the orthodox community, which the mother left following her return to England, and accordingly D will have her primary home within the community into which she was born. 80. Since he vacated the matrimonial home the father has resided in the home of the paternal family. He has continued to work for the same company. He has since the end of June begun a new relationship with EF. The father and EF became engaged in September 2015. EF has been introduced to D. It is the father's case that D is developing a warm relationship with EF... 81. If D lives with the father, she will also have the advantage of support from the paternal grandmother. It was she who cared for D for several months when the mother went to work in the nursery and before D was old enough to attend nursery herself. The mother accepted that when grandmother was ill, she had not wanted anyone else to care for D because she didn't trust anyone else with D."
[48]I cannot accept those submissions in their entirety, in particular the submission that the father has an established home with which D is very familiar. The fact is that since D's return to this jurisdiction, the father's arrangements have changed significantly. Just one month after her return he met and formed a friendship with CD, a young divorced lady with two young children of her own. Within a very short time of meeting, they became engaged, and intend to marry in the near future. The arrangement which the father suggests to the court would present an enormous change of circumstance for D. She would have to move from the care of her mother, who has been her primary carer throughout her life. She would move initially to live with the father at the home of the paternal grandmother. She would then have to move again fairly quickly once the father married EF. The relationship between the father and EF is itself in its infancy. They have not yet spent any time alone together. Each of them has had a failed marriage. Once married the father will have to step into a paternal role for EF's two young children; that will be a new experience for him. EF will have to adopt a maternal role for D; that will be a new experience for her.[49]I listened very carefully to the evidence of the father and EF, specifically seeking to understand how they envisaged that D would fit into their lives if a child arrangements order were made in favour of the father. It is the advantage of a first instance judge to hear the evidence live and also to have an opportunity of observing the witnesses as they give their evidence. It was perfectly clear to me that neither the father nor EF had given any real thought to how it might work if D were to live with them; what her place in their family would be; how she would adapt to being the youngest of a sibling group of three when she was used to being a single child; how she would react to the loss of her primary carer. The overriding impression which I gained from their evidence was that they were making plans for their life together with EF's two children, and little, if any, thought had been given to how D might fit in. It was almost as though neither of them really thought that this was a realistic option.[50]In addition, I have very real concerns about the ability of the father and the paternal family to promote a positive relationship between D and her mother. I note the proposals that the father has for contact and his offer to fund the cost of any contact in Israel if the mother were to return there. I have referred already within this judgment to the disapproving, dismissive and unsympathetic attitude of the father towards the mother, which was so evident from his oral evidence. I have also referred to the willingness of the paternal grandmother to denounce the mother as an adulteress in circumstances where she accepts she did not know whether that were true. I have referred to the evidence from the paternal grandmother about her reaction to the pleas for help from her daughter in law in November 2014. I found the tone of the oral evidence from the paternal grandmother particularly troubling. She articulated empathy for the mother’s predicament but her tone and body language were palpably hostile towards her. A line of cross-examination from Ms. Scriven was also of great concern to me. It was put to the mother in cross-examination that there was something inappropriate about her relationship with her male cousin who had come over from Israel to support her during this difficult time. The clear impression I gained from that line of cross-examination, which clearly was put on instructions, was that there was a belief in the paternal family that there was something sexually inappropriate between the mother and this cousin. In his written evidence the father suggested that this cousin had been “… kicked out of the army after a month because of his mental health. He is well known in our family to have problems in this area and it worries me that my child is being looked after by him whenever her mother is not there. He is an individual who is very disconnected with society and reality and I worry about D being with him”. Ms. Stone produced a document that suggested that the cousin was in fact honourably discharged from the army with no mention of mental health problems. I note that neither the suggestion of impropriety with the cousin nor his alleged mental health problems were advanced by Ms. Scriven in her final written submissions.[51]The overwhelming impression I gained from listening to and reading the evidence filed on behalf of the father is that the paternal family strongly and genuinely dislike and disapprove of the mother. I am satisfied that there is a risk that if D were placed with her father, her mother would be marginalised from her life because of their dislike and disapproval of her. Having observed the mother giving her evidence and also her demeanour in the well of the court, I would have very real concerns that if that were to be the case, she would not be strong enough to exert herself as a significant figure in the life of her daughter.[52]So in relation to the father's proposals, although I have no doubt that he loves D very much. I have particular concern about the effect of the change of circumstances upon D, of her removal from the care of her hitherto primary carer to be placed initially within the extended paternal family and very soon thereafter with the father and his fiancée who do not appear to have had any really thought or discussion about that and the effect upon D. I am also very concerned that if D were to be placed with her father, her relationship with her mother would be undermined because of his disapproval and dislike of her.[53]I move now to option (4), placement of D with her mother in Israel. Ms. Scriven's submissions about this option are set out in her final written submissions, which again out of courtesy to the parents I read in full:
"71. The mother's plans are inchoate and unsupported, and would expose D to unstable and inappropriate living conditions. The father is also concerned about the safety of D should the mother in fact reside in, an Israeli settlement on the West Bank, as proposed by her in her statement of 7 September 2015. It is an area which remains highly volatile. The father is further opposed to the relocation as he believes that the mother is hostile towards him, his family, and his orthodox faith and is unsupportive of his role in D's life. Accordingly she is highly unlikely to support contact arrangements or his relationship with D. In fact the father states that it is far more likely that the mother will seek to undermine that relationship, D's perception of the father, and her perception of the faith and community into which she was born, and frustrate any contact arrangements directed. The mother has not offered or disclosed any measures which could be taken here or in Israel which could sufficiently reassure the court in this respect. 72. The mother's credibility is so unreliable that the Court cannot place confidence in what she says are her plans for her future. 73. The mother told the court in her statement of 7 July that she planned to live with her grandmother. She has never lived with her grandmother. It seems from her own mother's evidence that she did not even stay with her grandmother when she went to Israel in March; she went to her mother for a short while but then went to friends (and she told the police that she stayed with friends in March 2015). Although there was a period when she spent one night a week staying with her grandmother, this was before D was born, and is entirely different from the stresses of full time living in close proximity with the additional demands of a young child. It is untried and untested. 74. In her statement of 7 September 2015, the mother's plans had changed. She now planned to live in an Israeli town on the West Bank in a three bedroomed house owned by her proposed employer. The town is situated on the West Bank in an area of Arab settlement. It is a troubled and dangerous area. She says she has been offered work there by a Mr. T. The only evidence provided in support of this offer is a letter from Aharon Hameiri, who described himself as Mr. T's attorney. There is no evidence from Mr. T, and no evidence that Mr. Hameiri is authorised to act on his behalf. No information is provided as to the duties the mother would be expected to undertake. Significantly also the letter does not refer to the provision of housing for the mother, which the mother describes as 'part of the package'. Nor is there any reference to the promise referred to by the mother that Mr. T will pay for her to take driving lessons. 75. In her oral evidence, her plans had changed again. She reverted to the proposal that she would live with her grandmother because of the concerns that the West Bank town is an unsafe area. However she still proposes to work there on a daily basis (weekdays). The town is some 98 kilometres away from the area of Jerusalem in which the grandmother lives. This would involve the mother in substantial - and tiring - travel - two hours by public transport each way each day. 76. It is difficult to know what real support she would have from her family in Israel. Although she went initially to stay with her mother in March 2015, she did not stay there. She did not go on to stay then with her grandmother, or any other family member. Instead she says she took D to friends in the West Bank town. This would suggest her real inclination is not to live with her grandmother, as she now claims, but in fact to take D to that town again. 77. The mother states that if the job in the West Bank town did not work out, '.. there are plenty of back up options for me. I would easily be able to find employment in childcare in the local area as I already have experience and such jobs are easy to find'. We observe that no evidence whatsoever has been provided in support of this assertion or that she would expect to receive £800 per month in such occupation. 78. What role would the mother allow the father to have in D's life if she were living in Israel? In her first statement the mother states that should relocation be permitted, '… it would be a priority of mine to facilitate the continued relationship between D and [the father]'. In the light of the evidence we have set out above, we submit that the Court must have grave doubts about this. On her own case, she wants any contact by the father in Israel to be supervised and to be visiting contact for a few hours in a day only. Moreover she has already made serious allegations of physical abuse by the father to the Israeli police and it is not known what if any intervention they may make should the father travel to Israel. There is nothing to prevent her making serious allegations against him again. A mirror order will do little to protect him in those circumstances."
[54]The mother's final position in respect of contact was that, notwithstanding her reservations, she would be agreeable to similar contact arrangements as those suggested by the father, namely six times per year, three in Israel, three in the United Kingdom.[55]It is correct, as submitted by Ms. Scriven, that the mother's proposals in relation to the practical arrangements in Israel have changed during the course of these proceedings to address the concerns raised by the father about the potential risks of living on the West Bank, and also demonstrate a fairly flexible approach to the arrangements in Israel if she were given leave to return. I have some sympathy for Ms. Scriven's description of the arrangements as being inchoate. However, Ms. Stone referred me to the judgment of the Court of Appeal in Re F and H (Children) [2007] EWCA (Civ) 692. The comment was made in the light of a similar situation as facing the mother, a wish to go home. The Court of Appeal said this:
"However, as my Lord, Hedley J, has pointed out, the bar as to practicalities that must be jumped by the relocation applicant is set at a wide variety of heights depending on the facts and circumstances of the case. In this commonplace category of cross-border family creation, where the primary carer is returning to a completely familiar environment, the bar is obviously set considerably lower than in the case of an applicant who, in pursuit of some dream or ambition, is proposing to take the children to an unknown and untried environment. The bar is set particularly low where the primary carer is returning to the completely familiar home life after such a brief absence. In this instance the mother had only been in this country for six years in total."
[56]This mother wants to go home after the failure of her marriage following a relatively short period of time spent in this jurisdiction. There is nothing for her in this jurisdiction where she has no status nor support, is unable to work and has no recourse to public funds. She wants to return to the country where she was born and raised, and the country in which D was born and has spent periods of time. She has family and friends in Israel. She has options for both accommodation and employment. I do not find that the absence of a finely tuned, clear life plan in Israel should be given significant weight in this particular case.[57]The mother has been the primary carer for D throughout D's short life. I have heard no significant criticism of that care until her forced return to this jurisdiction in May 2015. The criticisms made since then relate to the mother’s enforced insecure lifestyle. I accept the submission of Ms. Scriven that if the mother were permitted to relocate with D, there is a risk that she might not promote contact between D, the father and the paternal family and seek to undermine Ts relationship with them. Very sadly for D, that, in my judgment, is a risk whichever parent she is placed with. However, I have formed the very clear view that this father is a very strong character. In my judgment, he will not be put off; he will ensure that his rights are enforced. He is much stronger than the mother.[58]Further, the father is very familiar with Israel. He has lived there. He visits the country on a fairly regular basis. He has family living there. It will be easier for him to ensure that he maintains his relationship with his daughter if she is living in Israel with the mother, than for the mother if D were living in England with the father and she were living in Israel.[59]Further, the father's concern about the continued familiarity of his daughter with the orthodox Jewish way of life is, in my judgment, a proper concern. His concern that the mother's change of lifestyle might adversely affect his daughter is something which this court understands. However, in Israel D would continue to have experience of her orthodox Jewish heritage through the maternal extended family, but that experience would continue in circumstances where they do not appear to be disapproving of the mother and her lifestyle in the same way as the paternal family are.[60]Therefore, in conclusion, when I place the two realistic options side by side, I have concluded that, very sadly, there is a real risk that D will lose her relationship with the parent who is not her primary carer which does and will present a significant risk of harm to D who is a much loved child. However, I have concluded that this risk is greater if D is placed with her father for the reasons which I have given. D’s welfare needs for security with her primary carer and protection from a significant change of circumstance lead me to conclude that it is more consistent with D's welfare for her to live with her mother in Israel, and I have reached the firm conclusion that the move to Israel against the background of all the information to which I have referred in this judgment is a proportionate one for them. Accordingly, I accede to the mother's application pursuant to s.13 of the Children Act 1989 and give her permission to remove D permanently from this jurisdiction to Israel. _________