MK v RP (Hague Child Abduction Convention) [2018] EWHC 1475 (Fam)

[2018] EWHC 1475 (Fam)

Case No FD18P00084

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 12/06/2018

Before

MR DARREN HOWE QC

SITTING AS A JUDGE OF THE HIGH COURT

Between

MKApplicant

RPRespondent

Mr Mark Jarman (instructed by TV Edwards Solicitors) for Applicant

Ms Cliona Papazian (instructed by Freemans solicitors) for Respondent

Hearing Hearing dates: 6 and 7 June 2018

Judgment Approved

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 children and members of their 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.

Mr Darren Howe QC:

The Application

[1]This is an application under the Hague Child Abduction Convention for the summary return to Israel of 1 child, who I shall refer to as D. D was born in April 2012 and is now 6 years old. It is agreed between the parties that, prior to her removal on 29 November 2017, D was habitually resident in Israel. The applicant is D’s father and he seeks the immediate return of D to Israel. The respondent is D’s mother who opposes that application.

The Issues

[2]For the purposes of her opposition to the father’s application, the mother raises two defences. Firstly, that the father consented to the child’s removal; that consent having been included within the agreement reached between the parents when they divorced some 6 years ago. Secondly, the mother argues that a return of D would expose the child to grave risk of psychological harm or otherwise place her in an intolerable position.

The Law

[3]Article 1 of the Hague Convention states that its objects are: "(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

[4]Article 2 then requires Contracting States to "take all appropriate measures to secure within their territories the implementation of the objects of the Convention", for which purpose "they shall use the most expeditious procedures available".

[5]By virtue of Article 3, the removal of a child is to be considered wrongful where:

"(a) it is in breach of rights of custody attributed to a person… either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal…; and(b) at the time of removal… those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal… ."

[6]In Re D (A Child) (Abduction: Rights of Custody)

[2006] UKHL 51

, Baroness Hale of Richmond observed at para.48:

"The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."

[7]

Article 12 of the Convention

provides:

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

[8]Article 13 provides, amongst other things:

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the 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 was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention…" (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. The judicial … authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.In considering the circumstances referred to in this Article, the judicial … authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

[9]The leading case on the question of consent under Article 13(a) is the decision of the Court of Appeal in Re P-J (Children)(Abduction: Habitual Residence: Consent)

[2009] EWCA Civ 588

. At paragraph 48 Ward LJ identified nine principles to be applied when the court is considering a defence of consent:

"(1) Consent to the removal of the child must be clear and unequivocal. (2) Consent can be given to the removal at some future but unspecified time or upon the happening of some future event. (3) Such advance consent must, however, still be operative and in force at the time of the actual removal. (4) The happening of the future event must be reasonably capable of ascertainment. The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled. Fulfilment of the condition must not depend on the subjective determination of one party, for example, 'Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child.' The event must be objectively verifiable. (5) Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract. (6) Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed. (7) The burden of proving the consent rests on him or her who asserts it. (8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case. (9) The ultimate question is a simple one even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?"

[10]With regard to Article 13(b), the authority of Re E (Children)

[2011] UKSC 27

provides guidance:

"31. … By its very terms, [Article 13] is of restricted application. The words of article 13 are quite plain and need no further elaboration or "gloss".32. First, it is clear that the burden of proof lies with the "person, institution or other body" which opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence, the court will of course be mindful of the limitations involved in the summary nature of The Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13(b) and so neither those allegations nor their rebuttal are usually tested in cross-examination.33. Second, the risk to the child must be "grave"

. It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus 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.34. Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in In re D

[2007] 1 AC 619

, para 52, ""Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate"." Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: e.g. where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.35. Fourth, article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which 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 she gets home…"

[11]I have also been referred to the decision of Baroness Hale in Re D (Abduction: Rights of Custody)

[2007] 1 FLR 961

where the ambit of article 13(b) was articulated as follows:

‘Intolerable' is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate'. It is, as Art 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting state to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. In Hague Convention cases within the European Union, Art 11.4 of the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels II Revised) (2003) OJ L 338/1 expressly provides that a court cannot refuse to return a child on the basis of Art 13(b) ‘if it is established that adequate arrangements have been made to secure the protection of the child after his or her return'. Thus it has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case. No-one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm.’

[12]Should I be satisfied that one of the defences relied upon by the mother has been proved to the required standard, I then have a discretion whether or not to order D’s return to Israel. In re M (Children)

[2015] EWCA Civ 26

, Black LJ as she was then, described at paragraph 71 the factors to be taken into account when exercising discretion as: “The court has to have regard to other welfare considerations, in so far as it is possible to take a view about them from the limited evidence that will be available as part of the summary proceedings. And importantly, it must give weight to the 1980 Convention considerations. It must at all times be borne in mind that the 1980 Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said in In re M, at para 42, "[the] message should go out to potential abductors that there are no safe havens among Contracting States".

The Background

[13]I will summarise the background that I consider to be most relevant to the issues set out above. The statements of the parties and the other documentary evidence relied upon range across a number of issues and provide a great deal of detail. Given the summary nature of these proceedings, while I have read and carefully considered the evidence produced, many of the disputes between the parties cannot be determined on the limited oral evidence that I have heard and, for the purposes of this application, it is not necessary for me to do so.

[14]Given that I have heard some oral evidence, where I have preferred the evidence of one parent over the other, I do so applying the following principles:(a) The burden of proving an allegation rests with the party who is making it;

(b) The standard of proof is the simple balance of probabilities;

(c) Findings must be based on evidence and on inferences that can properly be drawn from the evidence but cannot be based on mere suspicion or speculation;

[15]The parents are both citizens of Israel. They married when they were both around 19 years of age and shortly thereafter D was born. This was an arranged marriage, as is the tradition within the community in which the parents lived. In her statement to this court, M makes allegations that F was lazy and lacked motivation to secure well-paid employment. She cites this as reason why the marriage failed. F does not accept M’s allegations and says that they married too young and were not compatible, which led to the breakdown of the marriage. Whatever the reason, the marriage did not endure. The parents separated in October 2012 and then divorced.

[16]The arrangements to take effect upon divorce were agreed between the parties, reduced to writing and registered in the Rabbinical Court of Jerusalem in December 2013.

[17]The document drawn to record the agreement between the parties has been considered by an expert in Israeli law, Mr Katzin, pursuant to an order made by Moor J on 13 April 2018. In his report, Mr Katzin describes the judicial system available in Israel for disputes arising from divorce in the following terms: “Personal status and family law for Jews in Israel provide for parallel jurisdiction of the civil Family Law Courts and the Rabbinical Courts, on certain matters and under certain conditions specified by law (among these: Family Courts Law, 5755-1995; Law of Inheritance, 5725-1965; Law of Jurisdiction of the Rabbinical Courts (Marriage and Divorce), 5713-1953; Spousal Financial Relations Law, 5733-1973).a. Relevant to the circumstances of this report, and as indicated above, parties wishing to divorce may submit a prepared divorce agreement either to the Rabbinical Courts, or to the Family Law Courts.

b. Following approval and certification of a divorce agreement by either of these tribunals, any further questions regarding guardianship may be adjudicated only by the Family Law Courts.

c. As stated above, relocation of children is considered a question of guardianship. According to Israeli statute and case law, any legal question regarding children must be evaluated and ruled upon based on the best interests of that child, on a case-by-case basis at the relevant time. Thus, even when an agreement or previous ruling contains provisions regarding children, these can be reopened by a court of proper jurisdiction in pursuit of the child's best interests. Any change of circumstance will be evaluated at the given time”. a. Relevant to the circumstances of this report, and as indicated above, parties wishing to divorce may submit a prepared divorce agreement either to the Rabbinical Courts, or to the Family Law Courts. b. Following approval and certification of a divorce agreement by either of these tribunals, any further questions regarding guardianship may be adjudicated only by the Family Law Courts. c. As stated above, relocation of children is considered a question of guardianship.

[18]Mr Katzin was asked to consider the terms of the divorce agreement executed by the parties. He described the drafting of this divorce agreement as ‘atrocious’ and is firmly of the view that it cannot have been drafted by a lawyer. The parents agree it was not drafted by lawyer but was written by a Rabbi acting as mediator. In her oral evidence, the mother said that she had not communicated directly with the father since their separation; as such communication is prohibited by the expectations of their community. It was clear from the mother’s evidence, and I so find, that the negotiation that led to this agreement being drafted was an ‘arm’s length’ negotiation in that both the mother and the father relied on others to inform them of the expectations and understanding of the other. The mother was asked if the negotiations were lengthy but her response was “my father spoke with his father and we reached this agreement. It was quite straight-forward”.

[19]What this agreement records are arrangements for D to live in the primary care of the mother and to spend time with the father. It also provides for child maintenance and seeks to record a process by which the parents would refer any future disputes to a professional akin to a mediator. In default of resolution by the mediator, it further records an agreement that disputes would be determined by a religious tribunal rather than a civil court. In his oral evidence, Mr Katzin described that such an agreement was unenforceable as, under Israeli law, it was not possible to contract out of the jurisdiction of the civil or family court.

[20]Following the divorce, it is the father’s complaint that M sought to exclude him from D’s life and did not facilitate the child arrangements that were specified in the agreement. The mother complains that the father did not commit to a regular pattern of time with D and when visits did take place, F would cause distress to D by showing her video recordings on his telephone (the use of such devices being prohibited in their community) and, at least on 1 occasion, by slapping D to the face. F issued proceedings before the Family Court of Jerusalem in June 2016. M sought to defend those proceedings on the basis that the Family Court did not have jurisdiction. It appears that she argued that the agreement reached between the parties gave exclusive jurisdiction to the Rabbinical Court. The Family Court rejected that argument.

[21]At the time of D’s removal from Israel in November 2017, the Family Court was actively engaged with D and the parents in monitoring the father’s visits with D, that were supervised due to the allegations made by the mother. It is right to record that the social worker’s reports of those visits paint a positive picture of the father’s contact with his daughter.

[22]In June 2015, some 20 months following her separation from the father, the mother married her current husband. He was living in Israel undertaking a course of study but is a British citizen. It was the mother’s evidence that during the matchmaking process with her new husband, she formed the desire to relocate to England and she told me that she and her husband had an explicit agreement that they would move to England after they had been together for 2 years. The mother accepts that D’s father was never informed of this proposal.

[23]On 22 November 2017, the mother made an application to the Rabbinical Court seeking an order, similar to a declaration, that the mother had authority to remove D permanently from Israel. The Application refers to the divorce agreement that, the mother argues, provides her with permission to relocate away from Israel without any notice being provided to the father. Indeed, during my hearing of limited oral evidence, it was put to the father on behalf of the mother that the agreement provides, in the event of the mother remarrying a man who lived abroad, that the mother could leave Israel with D without having agreed arrangements for D to see the father, as the agreement permitted such arrangements to be made following the mother’s departure.

[24]It is said that this agreement was reached to enable the mother to remarry without fear that the father’s desire to have an ongoing relationship with D would confine both D and the mother to their country of origin, thereby impeding her ability to secure a new spouse. It was the mother’s evidence that she ‘bought’ this freedom by agreeing with the father than she would not seek spousal maintenance from him and by agreeing that he would not be responsible for D’s marriage costs, as would be traditional in their community. It was the mother’s evidence that the father was happy to agree to the mother having permission to relocate from Israel on the basis of these financial incentives.

[25]On 28 November 2017, the Rabbinical Court made an order determining that there was no obstacle to the mother removing D from Israel. It is the father’s case that he was not served with notice of the mother’s application. He further argues that the Rabbinical Court had no jurisdiction to grant such an order and that its terms were not, and are not, binding upon him.

[26]On 29 November 2017, the mother traveled to England with D. She did not inform F of the date that she intended to leave Israel. She did not offer F any additional time with D to say goodbye. She did not seek to reach any agreement with F concerning dates when D might next see him. The mother did not inform the social worker engaged by the Family Court that she was leaving the jurisdiction and it was not until she failed to present D to spend time with the father, and her lawyer wrote to the Family Court to provide an explanation, that the father learned that D had been taken to England to reside permanently with the mother and her English husband.

[27]D had been due to have a supervised visit with the father on 28 November 2017, the day before she was removed from Israel. The mother was asked by Mr Jarman if she had told the social worker, who was to supervised the contact, that she was leaving Israel the following day. Mother said that she had not, as she expected her lawyer to do so. The mother alleges that D was unwell with an eye infection on 28 November and could not attend as she had been told that the infection was very contagious. The mother said in her evidence that she told the social worker that D was ill and that was the reason why she did not attend for contact on 28 November but did not advise the social worker of the flight to be taken the following day. The mother had, on her own evidence, by then received the order of the Rabbinical Court and, that very afternoon flights to London we were for early the following morning.

[28]When he discovered that the mother had removed D to England, the father made an application to the Rabbinical Court challenging the jurisdiction of that court, and of the single Rabbi, to make a declaration that there was no obstacle to the mother’s removal of D from the jurisdiction. On 19 December 2017, the Rabbinical Court granted a stay of its order, although the utility of that stay was limited given that D had already been removed from Israel. The mother applied for the stay to be lifted and the Rabbinical Court ordered the father to file a response to that application. The father did not engage further with the Rabbinical court but made an application to the Family Court of Jerusalem. That court sought clarification from the father as to whether he was to make an application to the central authority for D’s return to Israel pursuant to the terms of the Hague Convention. The father then made that application on 25 December 2017. He also made a formal complaint about the conduct of the Rabbi in the Rabbinical Court who made the order declaring that the mother was at liberty to remove D from Israel, a complaint that was upheld.

[29]The current position of the proceedings in Israel now appears to be as follows:(a) the stay of the order of the Rabbinical court remains in place, and

(b) the child arrangements proceedings before the Family Court of Jerusalem remain open.

[30]It was not until 31 January 2018 that the father’s application pursuant to the 1980 Hague convention was submitted to the International Child Abduction and Contact Unit by the Israeli Ministry of Justice.

The Conduct of this Hearing

[31]On 13 April 2018, Moor J directed the parties to file narrative statements and agreed that the court would hear oral evidence on the issue of consent, subject to the further direction of the trial judge.

[32]I heard oral evidence by video link from Mr Katzin, as to the effect of the divorce agreement under the law of Israel. Mr Katzin also provided detailed written and oral evidence concerning the jurisdiction of, and the interplay between, the Rabbinical Court and the Family Court of Israel. Despite the summary nature of these proceedings, I permitted some limited oral evidence from both parents regarding their intentions at the time the divorce agreement was drafted and concerning the mother’s challenge to the father’s reliability in providing financial support for her, which it was submitted was relevant to the undertakings offered by the father. I heard the evidence of the father by video link and the mother gave her oral evidence from the witness box in court.

The Mother’s Case asserting Consent for Relocation

[33]As set out above, the mother accepts that she did not inform the father that she was to remove D from Israel. It is the mother’s case that her petition to the Rabbinical Court dated 22 November 2017 was enough notice to the father. The mother disputes the father’s assertion that he was not served with the application.

[34]In her statement the mother describes, following the receipt of the draft divorce agreement, that both she and the father suggested amendments to the terms of the agreement. The father denies this to be the case but given the evidence I have heard from Mr Katzin, and for the reasons I will describe, whether or not amendments were suggested does not now assist me with determining the meaning of the agreement or the intentions of the parties at the time. It is the mother’s case, as set out in her statement, that the “permission agreed for my relocation included D as she was in my sole care”. At §11 of her statement, the mother states “this clause was inserted in the divorce agreement to avoid any conflict upon my remarriage, which was extremely likely given my young age at separation. At the time when the agreement was entered into, it was made very clear to both the father and I that the insertion of this clause in the agreement meant that there was no bar to D’s relocation abroad in the event that I remarried. As I was now divorced, the likelihood of finding a partner abroad increased as most divorcees like me marry a foreign national as there can be stigma within the community in Israel for a divorced woman as divorce is still quite rare”.

[35]Later in her statement, the mother says “I knew I had been given permission by the Rabbinical Court to move to the UK. Nevertheless, I requested clarification from the Rabbinical Court, as I wanted to ensure that everything was in place for my relocation and invite the father to make arrangements for contact. As I did not have any direct contact with the father, I was fully aware that the Rabbinical Court would serve the father with the request”.

[36]At no point in her written or oral evidence did the mother refer to providing the father with actual notice of her intended move to England. The petition that she filed with the Rabbinical Court simply states: “Re: Request to move abroad pursuant to art12B of the agreement. I got married for the 2nd time to a husband who is from another country and we put a condition pursuant to art 12b in the Agreement that after 2 years we will move to live abroad with my daughter (I got married in the month of Tammuz Tash’a). In addition I am taking a course in English to prepare myself for life abroad, and I placed my daughter in an English-speaking nursery. Now I am asking urgently to go with my husband since he is starting to work abroad on 1.12. I would like to implement and enforce the agreement art 12b”.

[37]The petition does not provide information as to where the mother was proposing to move with D or when such a move was to take place. The mother says that she relied upon the father to respond to her petition to the Rabbinical Court and discussions could then have taken place. Mr Jarman put to the mother that she had, from 2016, known the details of the father’s lawyers and known where father was residing and that she had ample opportunity to notify the father of her planned move. The mother accepted that she had contact details for the father but she said that she was advised not to inform him of her plans.

[38]Despite describing in her statement that she made her application to the Rabbinical Court “to ensure that everything was in place and invite the father to make arrangements for contact” there is no evidence that the mother sought the father’s views as to how contact between him and D could be maintained following D’s departure from the jurisdiction. As I have already explained, it was not until the Family Court made enquiries as to why the mother had not presented D for contact with the father that the mother’s lawyers reported that D had left the jurisdiction. It was then necessary for the father to issue these proceedings, and for a location order to be made, before any communications were permitted between father and daughter.

[39]It is clear from this short summary that the mother does not allege that the father gave express consent to D’s relocation at any time following the drafting of the divorce agreement. The mother’s case concerning consent relies entirely on the terms of the agreement that, she says, was reached at the time of the divorce in 2013.

The Terms of the Divorce Agreement

[40]I have before me 3 different translations of a paragraph of the agreement that the mother interprets as the father’s grant of consent to her relocation with D. The translation provide on behalf of the father reads as follows:

“When one of the girl’s parents emigrates abroad as a result of marriage and the like, the other party shall cooperate totally to arrange all necessary matters including the visits to the satisfaction of the two parents and if they emigrate for personal reasons, they cannot force the other side to agree to cooperate and in addition they can even detain them.”

[41]The translation provided on behalf of the mother says: “If one of the parents has moved abroad as a result of marriage and such, the other party shall fully cooperate and regulate all matters including visitation schedule to the satisfaction of both parents. And if they have emigrated due to personal reasons, they are not able to force the other party to cooperation, but it has the power to hold them back”.

[42]During his oral evidence, Mr Katzin, who is bilingual, was critical of the translations of this crucial part of the divorce agreement. He translated the paragraph as follows: “If one of the parents emigrates abroad because of marriage or such, the other will fully cooperate to set out all the necessary issues including the issues of access to the satisfaction of both parents and if they emigrate for personal reasons they cannot make the other party agree to cooperate and not only that they can prevent”.

[43]In his oral evidence, Mr Katzin said that there is no clarity in the meaning of the paragraph due to its poor drafting. He said there is no concept of custody in Israeli law and the heading of section of the agreement that contains this provision indicates that this part of the agreement is concerned with the physical charge of D. He said the agreement refers to visitation and provides that for the majority of the time D was to be in the care of the mother. It was his evidence that the relocation of a child is, under Israeli law an issue of guardianship, and not of custody or for who has physical charge of the child. It was his evidence that, absent a clear and unequivocal agreement, the permission of the court in Israel is required to relocate a minor.

[44]The concept of guardianship was, in Mr Katzin’s opinion, an important one given the mother’s reliance on the declaration of the Rabbinical Court that there was no obstacle to D’s removal from the jurisdiction. Mr Katzin described that the Rabbinical Court had no jurisdiction concerning guardianship, as its jurisdiction was limited to matters ancillary to a divorce and was limited to registering agreements made at the time of the divorce.

[45]In his oral evidence, he said the principle jurisdiction on issues between spouses of guardianship, parental contact, property, spousal and child support is in the Family Court. He said, for the Jewish community, the Rabbinical Court has exclusive jurisdiction on the issues of marriage and divorce.

[46]Mr Katzin described that, when issuing a petition for divorce, the moving party can join the issues of property and children, within certain parameters. Therefore, both the Rabbinical Court and the Family Court can certify a divorce agreement under the relevant statute except, if the certification is one of the family court, that certificate is not on the issue of divorce but only concerning the ancillary issues. Mr Katzin advised that, under Israeli law, the agreement to divorce does not need to be certified as, if the parties agree to divorce, the delivery of the Get is the carrying-out of the divorce.

[47]If a divorce agreement required enforcement, it was Mr Katzin’s opinion that this could be undertaken by an enforcement office available to both the Rabbinical and Family Courts, although the Family Court is generally responsible for enforcing its own orders.

[48]Concerning agreements regarding children, it was Mr Katzin’s evidence that, in theory, such agreements can be enforced by the enforcement office, although in practice this does not occur. Importantly, it was Mr Katzin’s evidence that once the Rabbinical Court “had finished its job by certifying the agreement, it does not have continuing jurisdiction to deal with matters”.

[49]Mr Katzin described, as carefully as he could given the sensitivity of the subject, that it is not unusual for the Rabbinical Court to hear cases upon which it has no jurisdiction. He said the Rabbinical Court is a religious tribunal that considers its jurisdiction extends to all members of the Jewish community, wherever they may reside. Mr Katzin was referred to a Rabbinical Court case report where that court considered that it retained jurisdiction concerning a financial agreement between spouses. Mr Katzin explained that this was a decision of the lower tier of the Rabbinical court system. He said it was not a binding authority and its conclusions were inconsistent with decisions of the Supreme Court of Israel.

[50]It was Mr Katzin’s firm opinion that the Rabbinical Court has no jurisdiction to authorize the removal of a child from the jurisdiction of Israel, as that is a matter of Guardianship and the Family Court retains exclusive jurisdiction to decide such matters. It was also his opinion that any question concerning the interpretation of the divorce agreement should also be determined by the Family Court, as the ‘job’ of the Rabbinical Court is completed when it registers the agreement at the time of the divorce. If Mr Katzin’s opinion is accurate, it matters not whether F was or was not served with notice of those proceedings, as the mother is then unable to rely on the decision of the Rabbinical Court on 28 November 2017 as providing her with authority to remove D from Israel that would render and otherwise wrongful removal lawful.

[51]During her cross-examination of Mr Katzin, Ms Papazian sought to challenge Mr Kitzan’s opinions concerning jurisdiction. However, Mr Katzin was clear in his evidence that the Rabbinical Court had no jurisdiction to grant the mother permission to leave Israel with D or to interpret the terms of the divorce agreement. In her closing submissions, Ms Papazian made an application to adjourn the hearing to enable the mother to produce alternative expert evidence, as she believed Mr Kitzan’s evidence concerning the Rabbinical Court was wrong.

[52]Mr Jarman opposed that application on the basis that Mr Katzin was a jointly instructed expert and I had confirmed with Mr Katzin, following the conclusion of his oral evidence, that he would make himself available to answer further questions by email if required. No further questions were raised on behalf of the mother on the 2nd day of the hearing.

[53]It was Ms Papazian’s submission that Mr Katzin’s oral evidence concerning the Rabbinical Court lacked jurisdiction to interpret the divorce agreement, was new evidence. I do not accept that this was new information. In his report, at paragraph 16, Mr Katzin says “a petition of that type would not be in that tribunal's jurisdiction but rather in the jurisdiction of the Family Law Court”. Mr Katzin has the advantage of being able to read the mother’s hand-written petition to the court as it was drafted in Hebrew. He gave his opinion concerning the jurisdiction of the Rabbinical Court to entertain the mother’s application in his report dated 30 May 2018. These are summary proceedings that have already been in being for over 3 months. The mother had the opportunity between the receipt of Mr Katzin's report on 30 May and the commencement of this hearing on 6 June to make an application for alternative expert evidence. I do not accept that Mr Katzin gave wholly new information in his oral evidence that would justify an adjournment of this hearing. The mother’s application to adjourn to obtain alternative expert opinion is, therefore, dismissed.

[54]Further, I unhesitatingly agree with Mr Katzin that this divorce agreement has been very poorly drafted. That its meaning is not clear to 2 translators commissioned for these proceedings or to an experienced bilingual Israeli family lawyer, is in my judgment a significant hindrance to the mother in proving to the required standard that this agreement provided her with the clear and unambiguous consent to relocation that she asserts had been agreed. When answering questions from Mr Jarman, Mr Katzin said “the agreement clearly does deal with issues of visitation but the relocation issue is totally ambiguous and it is not at all clear if the agreement is dealing with this”.

[55]I have carefully considered the 3 different translations provided of the divorce agreement. Given that Mr Katzin is an experienced bilingual family lawyer well placed to interpret and explain the meaning of the agreement, I prefer the translation that he provided during his oral evidence. I accept Mr Kitzan’s evidence and conclude that the wording of the agreement itself does not record an express agreement by the father to D’s relocation with the mother.

[56]The mother relies upon other terms of the agreement, providing her with sole custody of D, as evidence that the agreement provided consent for her relocation with D as, she says, she would not leave D behind should she remarry a man who lived abroad. The difficulty with that argument is the term 12b applies to either parent. It is not specific to the arrangements that apply should the mother seek to relocate. It was Mr Jarman’s submission that the agreement simply records the basis for, and an expectation of, a negotiation concerning the regulation “all the necessary issues including the issues of access to the satisfaction of both parents” should either parent marry a foreign spouse. I accept that submission and so find.

[57]As the written divorce agreement itself does not, in my judgment, provide the clear and unambiguous consent asserted by the mother, it is necessary for me to look at the other evidence available to identify whether the agreement has, by inaccurate drafting, failed to record what had been agreed. The Evidence of the surrounding circumstances to the Divorce Agreement. the utilization of its provisions and the conduct of the parties

[58]In his written evidence, the father states, “I do not accept that, as sole custody was given to the mother, this meant that D would automatically move abroad if the mother was doing so. This is not what I agreed to and would not make sense in the light of the significant contact I was to have as per the agreement”. The father says that it was his understanding that if either parent was to move abroad, the other person had to fully cooperate in discussing arrangements for D. The father goes onto describe that the mother would need to apply to the court, so there could be careful examination of her proposals for D if she wished to move abroad.

[59]Given that this was an ‘arm’s length’ negotiation facilitated by a mediator, M’s knowledge of what was, or was not, understood and agreed by the father does not come from her own contact with him at the time the agreement was drawn. In his oral evidence, the father accepted that he knew the mother would remarry and said, from the moment of the divorce, she was free to remarry whomever she wanted. Ms Papazian put to him a document found within the bundle that the mother was free to remarry any man, other than a Cohen, when D reached the age of 24 months. The father’s response was that he did not recall D reaching the age of 24 months as being discussed during the negotiations. When the mother gave her oral evidence, she said that this was a term of Jewish law and not a matter that was included within the agreement.

[60]The father accepted that the mother waived her right to financial support following the divorce but it was the father’s evidence that she did this as she wanted to divorce quickly. He said he had not agreed for D to be taken abroad if the mother did remarry. In his oral evidence, the father said it was his expectation, if the mother was to remarry and move abroad, that she should come and sort out dates when he would see D and not “just escape in the middle of the night”. He said his intention was that there “would be prior notice and she couldn’t just leave without notice”.

[61]The father’s answers were interpreted by Ms Papazian as him giving consent to a future relocation subject to his visits with D being agreed. I do not agree that this is what the father was communicating. I formed the impression that the father would have considered the mother’s proposals for a move abroad and, subject to suitable visitation being agreed, he may have then agreed to relocation. This is the exercise that any non-resident parent has to undertake when faced with a relocation desire by the resident parent. I found the father’s answers to these questions to be entirely reasonable and child focused.

[62]I have been invited to question the father’s credibility as a witness. When he was asked about his payments of child maintenance, he said that he had always made the child support payments required of him. I permitted the mother to introduce in evidence some schedules that, she says, demonstrate that the father had not always made every payment and that arrears had accrued. In her oral evidence, the mother accepted that the father had made child support payments through a government agency, so it was not then open to the father to pay the mother independently when this agency was involved.

[63]In October 2017, the mother made an application to the family court in Jerusalem for an increase in the father’s child support payments. She sought an increase from 1250 shekels a month to 5500 shekels a month. This application was heard less than 4 weeks before the mother left Israel with D. She did not inform the court or the father that she was intending to leave. When asked why not, the mother again said she was advised against it. The court increased the payment to 1800 shekels per month but it is clear from the documentation that, when the mother left the jurisdiction, the father stopped paying.

[64]Prior to the mother’s departure, it appears there were no arrears of child maintenance. Following the departure, the arrears were significant and bailiffs became involved. The father has now cleared the arrears but his involvement with the bailiffs resulted in him being barred from leaving Israel, which is the reason why he gave his evidence at this hearing by video link.

[65]It follows that the father’s evidence that he had always paid child support was inaccurate, at least from the time that the mother removed D from Israel. Aside from this one misleading answer, I found the father presented as a witness who was doing his best to assist the court and who, despite his desperation to see his daughter, did not seek to exaggerate or raise unnecessary or inflated complaints against the mother.

[66]When the mother was asked questions, by her own counsel or by Mr Jarman, she found it very difficult to focus on the question being asked and took what opportunities she could to speak negatively of the father, even if the question did not prompt such a response. I had to remind the mother to concentrate on the questions that she was asked and to refrain from seeing her evidence as an opportunity to denigrate the father.

[67]The mother was asked by Mr Jarman why she had not contacted a named Rabbi, as provided at paragraph B6 of the agreement, to inform the father of her wish to relocate and to seek to discuss her proposals. The mother’s reply was “we had agreed to appoint [the named Rabbi] but not about my daughter”. When challenged by Mr Jarman, the mother then said that they were using the Rabbi, who was an uncle of the father, until she was to get married to her new husband. She also said that the agreement to use the rabbi only lasted until the father ‘disappeared for a year’.

[68]I found these answers concerning as the agreement states that the named Rabbi was to be their contact person to whom all messages were to be sent regarding “future planning”. The same term of the agreement also states “the contact person shall focus on the benefit of the child”, so the mother’s answer that the named Rabbi was not for use when making arrangements for D was untruthful.

[69]Once the mother had left the jurisdiction, she accepts that she did not tell the father she had moved and he discovered this information following his application to the family court; an application he issued on 5 December 2017. The mother’s lawyer responded to the father’s application by informing the court that the mother was now in London. The Lawyer’s reply did not provide an address where the mother was residing. In a further letter to the court, dated 16 December 2017, the mother provides her phone number but the letter seeks permission to withhold the address where she is living with D as “she is afraid that the Respondent will go there and will act violently towards [her] and also towards the minor, as he did in the past”.

[70]In her oral evidence before me, the mother said she had not had any direct contact with the father since they separated in 2012. I recognize that the mother made an allegation that the father had slapped D but her statement in these proceedings makes no allegations that the father was physically abusive towards her or had been in any way threatening. It was not until an order was made by this court on 21 February 2018 that the father was able to have telephone contact with D and no reason has been given by the mother for why she failed to promote contact, if she believed that she was at liberty to remove D from Israel lawfully.

[71]It was Ms Papazian’s submission that the mother’s conduct throughout was consistent with that to be expected of a mother who believed that she had the consent of the father to relocate and, if not, the valid permission of the Rabbinical court. I do not agree. As submitted by Mr Jarman, the mother chose to rely on the divorce agreement when she believed it suited her and then ignored it at times when it did not. The mother gave no credible reason for not allowing D to see her father on the day before the mother removed her from Israel. I do not have enough information to find one way or the other whether D had a serious eye infection but as it was not so serious to prevent D flying from Israel to London on a flight that left Israel at 05.20 the following morning, and was an indirect flight via Zurich. I do not accept that D’s illness was an adequate reason to prevent the contact taking place, no matter what medication the doctor may have prescribed. If a mother believed she had the freely-given consent of the father, allowing the child to say goodbye to the father, particularly given the frequent contact that had taken place, would be behaviour much more consistent with the belief that there was no impediment to departure.

[72]The conduct of the mother that followed her departure indicates a desire to avoid the father and not an intention to involve the father in negotiations about child visitation that M says was all that was required of her by the divorce agreement she says she was acting upon but then, in my finding, ignored.

[73]I have considered the mother’s application to the Rabbinical Court on 22 November 2017. If it was the mother’s belief that she had valid consent to leave and issued her application for confirmation of that belief and, as she says in her statement, to engage the father in discussions, her failure to notify the father, either through her sister or the appointed contact Rabbi under the agreement or the father’s lawyer who continued to act for him in the proceedings before the Family Court is, in my judgment behaviour inconsistent with the mother’s evidence that she wished to engage the father in discussions about child arrangements post departure.

[74]In my judgment, the mother’s actions in booking a flight to leave as soon as she was notified of the decision of the Rabbinical Court, without leaving any time for the father’s consideration of that decision is, again, behaviour more consistent with knowledge that the father had not clearly and unequivocally agreed to his daughter leaving the jurisdiction and would attempt to prevent the mother’s departure if he learned of her intentions.

[75]I remind myself that the father did not, at the time of his application to the family court on 5 December 2017 know of the 28 November 2017 decision of the Rabbinical court and this information was not shared by anyone on behalf of the mother until her lawyer responded to the father’s application and informed the Family Court that the mother had relocated to London.

[76]When taking the mother’s actions prior to the removal, the day before the removal and since the removal all into account, I have come to the conclusion, on the balance of probabilities, that there is no evidence upon which I could conclude that there had been a clear and unequivocal consent given by the father for D’s relocation. The father’s pursuit of contact through the Family Court of Jerusalem, and his commitment to supervised contact, is in my judgment, behaviour consistent with his desire to maintain a close relationship with his child and I accept his oral evidence that at no time in the negotiations that led to the drafting of the divorce agreement did he agree to D’s removal from Israel without prior notice and agreement by him.

Decision concerning the Article 13(a) Defence

(a) Defence

[77]Having considered all the evidence presented I find that the mother has not satisfied the burden upon her of proving, on the balance of probabilities, that the father gave clear and unequivocal consent to D’s relocation from Israel. On the contrary, I find for the reasons given that the father has never given consent for D to be removed from the jurisdiction of Israel.

[78]I accept the evidence of Mr Katzin and find that the order granted by the Rabbinical Court on 28 November 2017 is not a valid permission by a court of competent jurisdiction for D’s removal from Israel by the mother.

[79]I find that D was wrongfully removed from Israel on 29 November 2017 in breach of the rights of custody of the father who was, at the time of the removal, exercising those rights.

The Mother’s Article 13(b) Defence

(b) Defence

[80]Ms Papazian, in her closing submissions, framed the mother’s article 13(b) defence on the following way:(a) D, and the mother, would be homeless if D was returned to Israel as the mother gave up her tenancy when she relocated, is unable to live with any of her siblings, as they do not have room to accommodate her and D, and her parents use their home as a day nursery for 20 young children so are also unable to provide them with a home;

(b) Separation from the mother’s husband will cause harm to D as he cannot leave London due to his employment and could only travel from time to time;

(c) The mother’s return to Israel would lead her to lose her current housing benefit payments which would result in the financial burden on her husband increasing leading to him being unable to afford frequent visits to Israel;

(d) The mother’s savings, and those of her husband, have been depleted by legal costs during the mother’s attempts to obtain the father’s release from the current restriction on him travelling abroad;

(e) The undertakings offered by the father are inadequate to prevent D being placed in an intolerable situation as D would be returning to destitution;

(f) Father has made no offer to fund the mother’s travel costs to Israel and this is not a cost that the mother can afford, presumably leaving the risk that D would have to travel alone and then reside with a carer unfamiliar to her;

(g) The Family Court of Israel will take up to 12 months to determine an application made by the mother for permission to relocate with D.

[81]At paragraph 39 of her statement, the mother that she would return to the home of her parents, if D was ordered to be returned to Israel. The mother does not say that she could not reside with D at her parents’ home due to its use as a day nursery. Even if is that use during the daytime, it would not in my judgment prevent accommodation being provided outside of business hours.

[82]The mother’s allegations, that D would be placed in an intolerable situation, arise largely from the practical arrangements to be put in place for the mother and D should a return be ordered. I recognize that separation from the mother’s husband after 3 years of marriage will be difficult but I do not accept that such a separation would place D in an intolerable situation or cause her psychological harm. She would be in the care of her mother who can keep D reminded of the husband and the mother can facilitate telephone contact with her husband. The mother’s oral evidence to me included references to her leaving Israel for a better life and for the husband to work in his father’s diamond business. I have been provided with no explanation for why family support would not be available to the husband to visit Israel to visit at times when he is able. I also take into account that the mother received from the father, on 14 May 2018 arrears of child maintenance that amounted to some £3600. I have been told that some funds have been used by the mother for legal proceedings in Israel but given the relatively small cost of flight to Israel of £365, this being the cost of a flight that was booked at very short notice when the mother wrongfully removed D on 29 November 2017, I am not satisfied that the mother’s husband would not be able to visit Israel during the period of any Israeli court proceedings that might following D’s return.

[83]I have been provided with a copy of the flight booking used by the mother to bring D to London on 29 November 2018. The flight information provided clearly identifies that the return part of the flight, that is currently booked as occurring on 1 November 2018 as ‘open’. In his closing submissions Mr Jarman did not accept the mother’s explanation through Ms Papazian that this flight could not be changed. Given that no evidence was heard on this issue, I am unable to make a determination but there is, on the face of the document at least, flights available to D, the mother and her husband. It may be that the father would improve his offer to fund the mother’s flight in addition to D’s flight were I to order D’s return to Israel, should the mother’s assertion that these flights cannot be changed prove to be correct.

[84]When I heard oral evidence from Mr Katzin, it was his opinion that the Family Court of Jerusalem is able to expedite proceedings in appropriate circumstance. He said that the mother would need to file an application with the court to relocate and the father would have 30 days to response, unless a shorter period was order by the court. Mr Katzin said that as there are ongoing proceedings in the Family Court, if reasons are given for why the application should be expedited, the Court would usually provide that expedition. I accept Mr Katzin’s evidence.

Decision concerning the Article 13(b) Defence

(b) Defence

[85]The undertakings offered by the father are as follows:(a) Not to attend at the airport when the mother returns to Israel;

(b) Not to support any proceedings in Israel (whether civil or criminal) for the punishment of the mother in respect of the D’s wrongful removal to England;

(d) Not to separate the D from the mother’s care and control save for agreed periods of contact until the first inter partes hearing in Israel;

(e) To pay the reasonable single economy flight for D to Israel.

[86]Given that the mother asserted in her statement, just 4 weeks ago, that she could return with D to the home of her parents, I do not accept that D would live in destitution if returned to Israel. I consider that the undertakings offered by the father are appropriate for D to remain in the care of the mother should D be returned to Israel until such time that the Family Court of Jerusalem considers any proceedings issued by the mother for permission to remove D from Israel.

[87]In my judgment, the evidence before me falls far short of establishing, on the balance of probabilities, that D would be exposed to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.

[88]I find the article 13(b) defence not proved.

Order

[89]Given that I find that the defences relied upon the mother are not proved, I order that D is to be returned to Israel. In the closing submissions on behalf of the mother, a generous interpretation of word ‘forthwith’ was requested to enable any return to take place after D has finished school on 12 July 2018. I remind myself that the father has not now seen his daughter for 7 months. I am told the school term in Israel has already ended so D would not be attending school immediately in Jerusalem if she was returned within days rather than the 5 week delay requested by the mother. I recognize that the end of summer term is an enjoyable time for a child of D’s age but I have to balance whatever disappointment she may feel by missing end of term activities against the desire of the father to see his daughter, my findings that D was wrongfully removed by the mother and my duty under the convention to make an order providing for the child’s return ‘forthwith’, which to my mind means immediately and without further delay, and I will so order.

[90]That is my judgment