Re NY (A Child) (1980 Hague Abduction Convention) (Inherent Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Haddon-Cave,Lord Justice Flaux |
| Judgment Date | 18 June 2019 |
| Neutral Citation | [2019] EWCA Civ 1065 |
| Docket Number | Case No: B4/2019/0982 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 June 2019 |
[2019] EWCA Civ 1065
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE
HIGH COURT OF LONDON
MR JUSTICE MacDONALD
FD19P00085
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Lord Justice Moylan
and
Lord Justice Haddon-Cave
Case No: B4/2019/0982
Mr M Twomey QC and Mr A Laing (instructed by Dawson Cornwell Solicitors) for the Appellant
Mr M Jarman and Mr M Gration (instructed by Ellis Jones Solicitors) for the Respondent
Mr T Gupta QC and Miss J Renton (instructed by Freemans Solicitors) for Reunite International (as intervenors)
Hearing date: 18 th June 2019
Approved Judgment
Introduction
This is the mother's appeal from the order of MacDonald J, dated 17 th April 2019, ordering the summary return of her child, NY (aged 2) to Israel. The order was made under the 1980 Hague Child Abduction Convention (“the 1980 Convention”) but the judge made it clear that he would have made the same order under the inherent jurisdiction.
The issues raised by this appeal are: (a) whether what occurred in this case amounted to a retention within the scope of the 1980 Convention; (b) whether the judge's approach to the issue of protective measures was wrong; and (c) whether the judge was wrong to order NY's summary return to Israel either under the 1980 Convention, if it applied, or under the inherent jurisdiction. I refused the mother permission to appeal from the judge's determination that NY remained habitually resident in Israel at the relevant date or to argue that his approach to the mother's allegations in support of her reliance on Article 13(b) was wrong.
In summary, the judgment below largely followed the structure of the parties' respective submissions and in particular the mother's case that NY was habitually resident in England at the relevant date and that the father had consented to NY's removal from Israel so as to bring the case within Article 13(a). This appeal has had a different focus. When I gave permission to appeal, I identified the issues set out at 2(a) and 2(c) above as being the matters which principally justified the grant of permission. The parties' submissions have, consequently, focused on those issues.
The mother is represented by Mr Twomey QC (who did not appear below) and Mr Laing. The father is represented by Mr Jarman and Mr Gration (who did not appear below).
I also gave permission for Reunite International to intervene by way of written submissions which are authored by Mr Gupta QC and Ms Jacqueline Renton. The issue they addressed was the interplay between Articles 3 and 13(a) of the 1980 Convention when the issue of consent is raised. This was a question which I can see might have appeared from the terms of the judgment below to be relevant in this appeal. However, although I am very grateful to them for these submissions, it has transpired, as set out below, that the issue which they have addressed does not in fact arise in this appeal. I do not, therefore, need to refer to their submissions in this judgment.
Background
The background is set out in MacDonald J's judgment: TY v HY (Return Order) [2019] EWHC 1310 (Fam) and it is therefore only necessary to include a brief summary.
The mother and father were both born in Israel and were married there in 2013. NY was born in November 2016. The family continued to live in Israel until November 2018. As set out in the judgment below, there is “a large extended family in Israel” and the parents “had a large group of friends”. They both had secure employment. NY's primary language is Hebrew “although it is said she also speaks some French and some English”. The mother speaks Hebrew and English; the father speaks only Hebrew.
In November 2018, following marital difficulties and after some discussion, the parents moved with NY to live in England. The judge found that “both parents had an intention to come to England with NY for a significant period of time with a view to attempting to establish a stable life here”, at [55]. There was, however, a dispute as to what had been agreed about the basis of the move. The father alleged that there had been an express agreement that they would return to Israel if matters did not work out in England and that they came “for a few months as a trial period only”, at [21]. I deal with this in more detail below but set out here the judge's conclusion as to the existence of such an agreement:
“[22] … in my judgment the evidence does not tend to support the existence of an express agreement … as contended for by the father. Whilst it is clear that both parties contemplated the possibility that the move to England would not be successful and that a further move or a return to Israel was a possibility, and whilst each party may well have further developed their intentions as to what would happen next as their marriage continued to deteriorate following their arrival in the United Kingdom, the evidence does not tend to support an express agreement to return to Israel in the event the move was not a success having been reached prior to their departure from Israel (in) November 2018.”
Prior to travelling to England, both parties gave up their employment in Israel and NY was removed from her nursery. They acquired accommodation in London and signed a one-year tenancy. The father also obtained employment and NY started nursery here in December 2018.
The move to England was not successful and on 10 th January 2019, just over 6 weeks after they had arrived here, the parents agreed that they would divorce. Following that decision, the father said “that he wished the family to return to Israel to deal with the end of their marriage”.
On or about 14 th January 2019 the father returned to Israel in the circumstances set out in the judgment below.
The father commenced proceedings in the Rabbinical Court in Israel for divorce and custody of NY. The mother issued divorce proceedings in the Rabbinical Court in London and has engaged lawyers in Israel in respect of the proceedings there.
The 1980 Convention Proceedings
By letter dated 6 th February 2019 the Israeli Central Authority sent an application under the 1980 Convention to the English Central Authority. The father's case, as set out in this document, was that the family had moved to London “for a period of several months as a trial period”. It was also stated that the father had only given “limited consent” to the family's move to London, in other words for a limited period, and further that this consent has been obtained “through false representations”. The father had “expected that they would” return to Israel as the trial period had been unsuccessful but the mother had refused to do so. In the father's statement in these proceedings he advanced the same case, including that he had “only agreed to move to England for a few months as a trial period only, on the basis that we would all return to Israel in the event that the move was not successful”.
Following receipt of the application by ICACU on 13 th February and the instruction of solicitors on 22 nd February, proceedings were commenced in England on 26 th February 2019.
In the order made on 7 th March 2019, the father's case is recorded as being that an alleged wrongful retention took place on 10 th January 2019. The mother's case is recorded as being that NY was habitually resident in England at that date; that the father had consented to NY's removal from Israel and subsequent retention in England; and that Article 13(b) was established.
The mother's allegations advanced in support of her defence under Article 13(b) are addressed in detail in the judgment below and I do not propose to repeat them. As the judge described, she made “extensive allegations of physical and emotional abuse”. The father denied the mother's allegations but also relied on proposed protective measures. These included a number of undertakings and the availability of what might be called protective services in Israel for victims of domestic abuse as set out in a letter from the Israeli Ministry of Justice. The latter included support available from welfare authorities and shelters for victims of domestic abuse. The letter also dealt with financial benefits potentially available from the state.
The mother's statement also dealt at length with her and NY's “home and life in London”. She set out matters which were considered relevant to how the court should exercise any discretion which might arise. This is made clear by the mother's skeleton argument for the hearing below which under the heading “Discretion” made the following submission:
“24. Given that NY is, on all counts, settled and happy in England, as is her primary carer, with accommodation, money, a nursery place and a solid support network, the court should exercise its discretion not to return NY to Israel.”
Apart from the issue of discretion, the skeleton arguments for the final hearing before MacDonald J on 15 th April 2019 focused on the issues of habitual residence, consent and Article 13(b). The father reiterated that the move had been for a trial period such that he had not given ““clear and unequivocal” consent to the permanent relocation of NY to England”. The mother argued that NY was habitually resident in England on 10 th January 2019 and, alternatively, that the father had consented to NY “remaining in England post-10 th January”. It was submitted that it was not open to the father to revoke his consent to the move to England and unilaterally turn what had been a relocation into an abduction.
The judge heard brief oral evidence from the mother, the father and a witness on behalf of the mother.
At the outset of the judgment, at [2], the judge refers to the mother's...
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