TY v HY
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 17 April 2019 |
| Neutral Citation | [2019] EWHC 1310 (Fam) |
| Docket Number | Case No: FD19P00085 |
| Court | Family Division |
| Date | 17 April 2019 |
[2019] EWHC 1310 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice MacDonald
Case No: FD19P00085
Mr Mark Jarman (instructed by Ellis Jones) for the Applicant
Mr Alex Laing (instructed by Dawson Cornwell) for the Respondent
Hearing dates: 15 and 17 April 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice MacDonald
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.
INTRODUCTION
In this matter I am concerned with an application under the Child Abduction and Custody Act 1985 for an order requiring the summary return of NY, now aged 2 years old, to the jurisdiction of the State of Israel pursuant to Art 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereafter the 1980 Convention). That application is brought by NY's father, TY (hereafter, the father). It is resisted by NY's mother, HY (hereafter, the mother).
In resisting the application, the mother contends that immediately before the date on which the father alleges she wrongfully retained NY in the jurisdiction of England and Wales, NY was habitually resident in this jurisdiction, taking this matter outside the scope of the 1980 Convention. In the alternative, the mother contends that the father consented to NY being removed from the jurisdiction of the State of Israel for the purposes of Art 13 of the 1980 Convention, and also that to order the summary return of NY to the jurisdiction of the State of Israel would result in a grave risk of her being exposed to physical or psychological harm or otherwise placed in an intolerable situation for the purposes of Art 13(b) of the 1980 Convention. It is not disputed that at the relevant time the father had rights of custody under Israeli law and was exercising those custodial rights.
In considering this application, I have had the opportunity of reading the trial bundle in this matter, which bundle contains the statements of the father dated 26 February 2019 and 11 April 2019, the statement of the mother dated 29 March 2019 and a statement from a witness on behalf of the mother, Mr HR, dated 2 April 2019. I have also heard oral evidence from the mother, the father and Mr HR on the issue of consent. I have had the benefit of careful and considered written and oral submissions by Mr Mark Jarman of counsel on behalf of the father, and Mr Alex Laing of counsel on behalf of the mother.
It is important to note at the outset that I have significant concerns regarding the credibility of the mother's evidence in light of the contents of her text exchanges with Mr HR on 13 January 2019. In particular, the text exchange between the Mother and Mr HR, which both accepted had taken place (albeit Mr HR at points tried to suggest the record could have been altered), indicates the following:
i) Mr HR advised the mother to “eavesdrop” on the father if the Police were there;
ii) Mr HR advised the mother to dress modestly when seeking advice from others and to “Play the game now, there's nothing else to do in order to win”. The mother appeared to have accepted that advice.
iii) Mr HR advised the mother to ensure that she prevent the father from leaving England until she had arranged “the divorce and the gett”.
iv) Mr HR advised the mother to mislead staff at the Rabbinical Court in London, telling her, “in order that they treat you with respect, come dressed modestly, in a skirt etc. so they think that you're religious. There's no other way you have to play the game now in your favour, If they ask you then say you are becoming more religious and are keeping Shabbat, just because of him you sometimes weren't able but now you are keeping Shabbat again. If they ask that's what you should say.” The mother replied “Yes, I called”.
v) Mr HR advised the mother to make allegations to the staff at the Rabbinical Court, telling her “Say its urgent, cry to her” and “Say that you're afraid that he'll kidnap the girl. A day after this conversation, on 14 January 2019, the mother alleged to the Police that the father would kidnap NY.
vi) Mr HR advised the mother to mislead the father in respect of the level of contact he would have with NY in order to obtain a gett, stating that, “You will play the game that you want to end this as pleasantly as possible. Tell him, if you want I'll send her to you on Passover, Hanukah, Sukkot. Say anything so that he'll give you a gett because Thehila, if he doesn't give you a gett, you'll be in a messy situation and he'll be able to drag it out. You have to get him to a situation here he'll give you the gett, after than you'll make an agreement in the rabbinical court about when he'll see the girl, once every two or three months”.
Within this context, I cannot ignore the fact that the mother's statement to this court (which statement, in addition to dealing with her case on habitual residence and consent, makes serious allegations of physical and emotional abuse by the father and emotional abuse, isolation and manipulation by the father's family that were not raised in Israel and which are in some instances contradicted by other evidence before the court) postdates the foregoing text exchanges in which she was advised to mislead the Rabbinical Court and the father and did not appear to demur from such advice. I am satisfied that the mother's oral and written evidence falls to be evaluated in this context and must be treated with some caution as a result. Likewise, I am satisfied that the evidence of Mr HR must be treated with very considerable caution by this court.
Finally, on the other side of the evidential divide, the father seeks to rely on three letters exhibited to his second statement, the contents of which he submits are relevant to the question of the basis on which he says he consented to the removal of NY from the jurisdiction of the State of Israel. However, the originals are not before the court, the letters are not otherwise presented in their original form, appearing to be typed up versions, nor are they signed by their respective authors. Within this context, the court can place minimal evidential value upon them.
BACKGROUND AND EVIDENCE
Prior to their arrival in England with NY in November 2018, both parents had lived their lives in Israel, the mother having been born in October 1988 and now aged 30, and the father having been born in May 1990 and now aged 29. NY was born in November 2016 and likewise had lived in Israel prior to being brought to England by her parents. It is not disputed that NY benefited from a large extended family in Israel and that the mother and the father had a large group of friends. Both the mother and the father had secure employment and accommodation in Israel. 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.
The parties were married in 2013. The mother contends that the marriage was characterised by (a) physical and emotional abuse by the father towards her and, on two occasions, towards NY and (b) emotionally abusive, oppressive and isolating behaviour by the father's family towards her and NY. On the face of the evidence available to the court, there are however, some forensic difficulties with these assertions that the court cannot ignore for the reasons that I discuss further below when analysing the evidence before the court in the context of Art 13(b) of the Convention.
The mother makes extensive allegations of physical and emotional abuse by the father against herself and others. Whilst she describes no specific incidents or provides any detailed particulars of the same, the mother alleges the father would push and hit her every two or three weeks. She further alleges that on an unspecified date he held a gun to her head and threatened to kill her. Again on unspecified dates, she alleges that on twenty to thirty occasions the father threatened to crush her skull. In addition, the mother characterises the father as “dangerous and violent” and involved in violent incidents at work, including a violent assault on a 16-year-old boy that was reported in the press and for which a colleague took responsibility and was as a result dismissed. No further evidence is provided in respect of this allegation, whether by way of the production of the press reports or otherwise. None of these allegations were made in Israel.
As I have noted above, I must also have regard to the fact that these allegations are made at a point after the mother was advised by Mr HR to mislead the Rabbinical court, including making allegations of threatened kidnap against the father, one day after which the mother made precisely that allegation to the Police. Further, against the mother's characterisation of the father as a dangerous, violent and short tempered individual, the communications the mother has provided to the court that were sent by the father on the day the parents decided that their marriage was over in January 2019, are not unusual in such a context and do not depict the level of aggression the mother seeks to characterise the father as demonstrating in times of difficulty...
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