MB v SB

I am concerned here with M. There is one issue in the case: where is M habitually resident? There is extensive jurisprudence concerning the question of habitual residence but ultimately it is a question of fact to be gleaned from an enquiry into the reality of the child’s day to day life. Before I embark on that exercise and having identified the task in these terms I am driven to comment on the extensive documentation that has been filed in this case, running into many lever arch files. It is not only disproportionate, it actually serves to distract from the focus of the enquiry, rather than to assist it. This is not the first time I have felt constrained to make this observation.

The effective family lawyer is one who can hone, narrow and focus the issues both in the courtroom and in the litigation process. In what are frequently highly emotive cases nothing is served by chasing every hare i.e., pursuing every potential enquiry, investigating each obtuse factual dispute. This does not assist the lay client or the Judge and most importantly it is inimical to the interests of the child. It generates hostility, encourages an adversarial approach rather than promoting the investigative philosophy that underpins the legal framework of the applicable law. It leads inevitably to delay. There is absolutely no reason at all why the evidence here properly marshalled, could not have been distilled into one relatively slim file. I am not going to speculate as to the reason why these extremely experienced and highly respected firms of solicitors have allowed this to happen, though no doubt those reading this judgment may. What is clear is that this is a case that has been litigated to saturation point. It is bad practice, the professional objectives appear to have been to confuse, obfuscate and to inflame hostility. In approaching the case in this way the solicitors themselves cause indirect harm to the child. They fall below, by some distance, the high professional standards that characterise those who, from many diverse disciplines, work in this challenging area of the law. There is an enormous gulf between fidelity to instructions from a lay client and the encouragement of irrelevant or simply bad points. The competent lawyer understands the distinction instinctively.

There have been detailed and helpful chronologies filed in the case. I do not propose to rehearse the substance of them in extenso, they summarise the full background to the proceedings: In 2004 the parties moved to London, M was born on 15^th November 2006. The Father has four other children, the couple spent the first four years of their marriage living both in France and in Monaco. The marriage fell into difficulties and in 2009 they divorced, both remarried shortly after and the Father has subsequently remarried to his now fifth wife.

On 14^th April 2010, the parties entered an agreement at the Principal Registry in London which was reflected in a consent order, endorsed and approved by District Judge Roberts. . Accord has been almost impossible to find in this Courtroom between the parties, or in the period in which they were both living separately in Israel, between July and December of 2013. That period, as I will analyse in due course, was characterised by a cold and corrosive conflict which was contrary to the welfare of M and entirely inconsistent with the aspirations of either parent for her future wellbeing.

However, in April 2010 it was declared, by consent: that M was habitually resident in England and Wales; that she should reside with her Mother; that the Mother should make M available for contact and that neither party was to remove the child from the jurisdiction without the written permission of the other.

Between 2010 and early 2013, both the parties continued to live primarily in London. The Father is a man who has amassed a considerable personal fortune. He has, following the breakdown of his marriage, committed to pay periodical payments to the Mother in the sum of approximately £270,000 per year. These figures alone show that, unlike so many of the children who come before this Court, M should start her life with enormous advantages; parents who love her and the opportunities that wealth can bring.

In London the Father enjoyed regular contact with his daughter but in 2013 he took the decision to move to Israel on a permanent basis. I have read in the papers, though it has not been the focus of evidence, that in his middling years the Father has developed a greater interest in and commitment to his faith and that he occupies much of his time now in understanding that faith and in reading from the Torah.

The Mother’s subsequent marriage to a man called V fell into difficulties. It is not necessary for me to conduct a post mortem on what killed that marriage but there is no doubt that the Mother was shaken by the disappointment of a second failed marriage. Notwithstanding the difficulties that she and MB had experienced in the past by 2013 she considered that he had softened in his hostility to her and there was undoubtedly talk between them about a move to Israel.

The relocation to Israel for the Father is easy to understand. It is for him a return to a spiritual home and it is entirely consistent with his evolving interest in his faith, religion and culture and his more general moves towards an observant lifestyle. The Mother has converted to Judaism but, for somewhat complex theological reasons, did not enter into a religious ceremony of marriage. However, that she respects the Father’s faith is to my mind clear and that she respects M’s entitlement to grow in it and understand it is also beyond question. The Father too recognises the mother’s acknowledgment of this.

Therefore, it was in July of 2013 that the Mother followed the Father to Israel, where she and M lived. There was a pattern established in which M saw her Father on Friday and Saturday evening and would return some time on Sunday to her Mother. I have listened very carefully to the Mother’s articulation of her reasons for going to Israel and it seems to me that both the parents had very different agendas.

The Father’s objectives were much clearer to understand. In my view of his evidence, he was taking a ‘softly, softly’ approach to the future. The longer that M was in Israel, the greater the chance of her remaining there. He told me he did not want to contemplate what he described as “the million different circumstances that might arise” in effect, to thwart his objectives. He merely hoped that with the passage of time M’s permanent residence in Israel and in the heart of the Father’s family would become a reality. That, I have no doubt, is what he still wishes for and aspires to.

He was very careful, in my view, not to push his agenda or even to be transparent about it and he gave a rather partial perspective of his life to the Mother. By way of example, the Mother was plainly concerned that M was not settling in Israel. She was worried that she was being bullied at school and was not integrating. She was also concerned that in not having a mother who was Jewish by birth M might not be fully accepted in an orthodox environment. The Mother expressed some of these anxieties on the ‘WhatsApp Messenger’, a software facility the parents used, at least ostensibly, to communicate with each other. They rarely spoke or met together. The Father appeared to share these anxieties. He suggested that it would be helpful to invite some of M’s school friends for Shabat dinner. In fact he invited his fiancé. He had not told the Mother of his marriage plans. In my judgement he did not do so because he suspected that the Mother had grown dependent on him and might return to England immediately on hearing such news. MB is a tactical man who was playing a long game. He knew that M’s stay in Israel was fragile and did not want to risk a speedy return to England.

By contrast, the Mother was far more ambivalent. I emphasise that these two parents contacted each other but in my view barely communicated in any real sense of that word at all. The Mother had a completely different perspective on the future to my mind and it is somewhat more complex to unravel. I think it is true that she felt bruised by the collapse of her marriage to V. She certainly warmed towards the Father especially in consequence of the generous assistance he gave her in her divorce from V in Russia.

The Mother is a good deal younger than the Father and is in some respects, unworldly. She appeared to be attracted to the Father’s confidence and general capability and in my mind that was part of her objective in moving to Israel. Not to rekindle the marriage but to see whether a life could be established for her and M close to the fountain of practical and financial support. Perhaps she also intended, as the Father suggested, to obtain a permanent passport from the State of Israel which could give her greater flexibility of movement internationally.

The Mother was immensely wary of the Father. From the very beginning Israel did not suit her. She put no roots down at all in her rented home and later when the house was burgled she was, to my mind, really quite thrown by it. She wanted at that stage the Father’s practical support and reassurance and without it she was entirely adrift. She told me that she had cooperated with contact but I have the most distinct impression of a Mother who was profoundly lonely and isolated during the time when her daughter was away. It is perfectly clear, that this Mother certainly put no roots down in Israel at all but whilst that is relevant it is more important to assess whether M was able to do so.

I have not the slightest doubt that the Mother wanted M to be happy and to integrate into Israel. She was prepared, to my mind, to give it a run, to see how it went, to see if it worked in some way, whatever way, it was nebulous both for her and the child. However, ironically, it was the Father’s failure, to assist, to cooperate, to meet with the Mother, to co-parent, to share the burden, which simply made the Mother’s situation, for her, impossible. She did not speak Hebrew or have any friends and neither did M.

I have not the slightest doubt, nor to my mind can there be any doubt about it, that M’s primary attachment is to her Mother. I am equally clear that the Mother’s unhappiness impacted upon M too. It was bound to do so, why would it not? M and her Mother are extremely close. It seems to me that almost entirely in consequence of Mother’s inability to put down roots, so too M struggled to do so.

M did not speak Hebrew at all and she went to a Hebrew-speaking school. The climate in Israel, in September, October, was very hot, both parents agreed she did not take to the heat. There is no doubt at all, not least because the Father is able to acknowledge it, that she had some trouble at school, was subject to some bullying and had twice expressed the view to her Father that she did not want to go to that school. Somewhere in the parents’, `fractured relationship,’ as Mr Gupta properly characterises it, she got lost. It is plain that, as the weeks went by, the relationship between the adults, the parents, had deteriorated.

I am particularly conscious that the Father gave his evidence in his fourth language and make allowance for it. He is a confident man, he has an ironic sense of humour and even some capacity for self-reflection when he permits himself that indulgence. The fact that he was communicating in his fourth language did not at any stage impede him from getting his point well and truly across, for that it seems to me is the nature of the man. ‘Forthright’, says Mr Gupta, his counsel, to the point sometimes perhaps, says Mr Gupta, of being ‘terse’. He is though, in my judgement, a man who struggles to empathise emotionally with those around him, particularly his former wife, the Mother, but also M.

My attention has been drawn to particular passages of communication between the parents in the period between October and December, as this very uncertain arrangement, as I find it to be, finally began to founder. By mid-October it was obvious to the Mother that M was struggling. The Father’s approach was, “to tough it out, it was normal to expect difficulties”. He said “M just had to work them through”. It is a philosophy of parenting from perhaps a different generation but the Mother was plainly distressed by her daughter’s distress and repeatedly pursued this with the Father.

When speaking to the Mother, the Father could, I find, be more than ‘terse’, he was dogmatic, occasionally capricious, highly opinionated and sometimes, I am afraid to say, a bully. On 17^th October 2013, the Mother again broached her concerns concerning M’s school and the possibility of a change. The Father’s response to it highlights much of the difficulty in this case. His response was extreme and unkind, petulant, immature and a long way from a sensible focus on the interests of his daughter.

I confess that, as he was taken to his response by Mr Hale on behalf of the Mother, I had expected the Father to resile from his own words as said in anger acknowledging that they were inappropriate. However, his evidence was that he could not see anything wrong with the terms he used. He described the question of a change of school as a “crime” and said, `I considered such a move as a war against me,’ he said, `and my daughter.’ It is chillingly dogmatic and it is no wonder the Mother found it difficult to deal with him and became so distressed. It is a passage which, as I say, illuminates the dynamic of their relationship and the plight of their daughter caught in the conflict of it. It has been said many times in these Courts, by many experts, that it is not divorce itself that is damaging to children but conflict and the level of conflict between the parents by October could not have been clearer. The Father was rather concrete in his thinking. Listening to him it is plain that he thought that as time passed M would settle and her Mother would agree that she could stay. Ironically his failure to be honest with the Mother or to help her, actively undermined his own objective. It left the Mother isolated and it sent a clear signal to M that her parents were not working together for her. This, in turn, unsettled her.

Miss Jaqueline Bartley, an experienced High Court team and Cafcass officer, prepared a report dated 6^th March 2013she also gave evidence before me. Mr Gupta QC, on behalf of the Father, did not challenge or did not significantly challenge her conclusions, he had no need to do so. Mr Hale sought to press beyond her conclusions to see if he could elicit a clearer view of where M’s true wishes and feelings lie.

In her conclusion, Miss Bartley observed at paragraph 35,

The principles which underpin the Child Abduction and Custody Act 1985 and the 1980 Hague Convention are ones of international comity between contracting states predicted on respect of the contractor’s judicial processes. Even where, as here, a welfare enquiry is appropriate, as all agreed it was before Ms Justice Russell on 31^st January 2014, the welfare enquiry must of necessity be both quick and therefore relatively limited. Nonetheless Miss Bartley was in this case able to give me a real sense of this little girl’s personality and character.

“She was able to cognitively grasp tricky concepts and exhibited some broad sequential links”

She is also rather “exaggerated and sarcastic in her tone” I could not help noticing this same characteristic in her father. What is very plain is that she strongly disliked school in Israel. She returns to it repeatedly and I am satisfied that this socialable little girl struggled to integrate into her school or to develop any real friendship network. I am also clear that the Father’s coldness to the mother and the conflict and unhappiness this generated prevented M establishing a secure family life either.

I have had the opportunity, equipped with Mrs Bartlet’s analysis, to survey a broader landscape than she did. I have heard more about the conflict of the family’s time in Israel. From this I can elicit M’s ‘feelings’ which are distinct from her expressed wishes and not to be conflated with them, as Ms Bartlett signals. Hearing both parents discuss, from their radically different perspectives, M’s time in Israel, casts a brighter light on what M has said to the Cafcass Officer. The parent’s accounts underpin M’s own accounts. She was conflicted, unsettled, unhappy and unable to integrate. She simply was not provided with a stable environment in which to put down any roots. The contrast with her life in Chelsea could not be more stark.

I have been referred to the authorities. It is emphasised by Mr Gupta, that the concept of habitual residence must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. He draws my attention particularly to paragraphs 49, 50 and 51 of the Judgment in the case of Mercredi –v- Chaffe [2011] 1 FLR 29, a Judgment of the Court of Justice of the European Union. Those passages are conveniently summarised in a postscript summary to the Judgment at paragraph 72.

Even if, I find this to be a temporary move or a period of exploration says Mr Gupta, this may nonetheless lead to a change of residence. In support of which proposition he relies on In Re P-J (Abduction: Habitual Residence: Consent)[2009] 2 FLR 1051. There Lord Justice Ward stated at paragraph 28:

Mr Hale draws my attention to the case of Re; LC (Children) [2014] UKSC 1 and in particular to paragraph 63 in the Judgment of Lady Hale. (a minority Judgment, one with which Lord Sumption agreed, but at paragraph 63 addressing a point of more general and uncontroversial application):

In A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2013] 3 WLR 761the UKSC considered the proper approach to the determination of a child’s habitual residence in the specific context of an application made pursuant to the inherent jurisdiction. Notwithstanding the nature of the proceedings before them, the SCJ’s considered the broader position. Baroness Hale (delivering the judgment of the court, save Lord Hughes who delivered a separate judgment) held that:

“Drawing the threads together, therefore:

i.

All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

ii.

It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

iii.

The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

iv.

 It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

v.

In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.

vi.

The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

vii.

The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

viii.

As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time” (Footnote: ¹)

For the reasons I have analysed in my exploration of the facts of this case, I do not believe that the Mother ever left the United Kingdom with the intention of emigrating. She left, keeping the options open for herself in the United Kingdom, her home, her Doctor, her belongings. The Mother told her accountant that she would be in Israel “throughout the year”. Though Mr Gupta seeks to harness that in support of the Father’s case what is striking about it is its ambiguity and its inconsistency with any permanent removal. She does not say ‘I am emigrating to Israel’. She does not do so, in my mind, because she had not committed to do so. This was a reconnoitre and I have little doubt the father presented it to her in precisely that way.

Lady Hale goes on to say, in AvA (Supra)

Finally, I have considered the case of Re; KL (A Child) [2013] UKSC 75, the definitive statement of the test relating to habitual residence. Delivering the Judgment of the court, Baroness Hale observed

“20.

The essential features of the test adopted both by the CJEU and by this Court are that habitual residence is a question of fact which “should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce” (A v A, para 54). In both Proceedings brought by A and Mercredi v Chaffe, the operative part of the judgment of the CJEU stated that the concept “corresponds to the place which reflects some degree of integration by the child in a social and family environment”. In A, the CJEU continued,

“To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.”

I emphasise Lady Hale’s observation that habitual residence is a question of fact which, `-should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce.’ It is, she observes, clear that,

In this factual enquiry I have the opportunity of placing M’s answers to Ms Bartlett’s questions in context. Because, as Ms Bartlett observed, M’s had “made a link” between sharing her views on Israel and being made to return, she felt this obscured her understanding of her feelings. That was not, she emphasised, saying that the negative views expressed by M were not true, merely that they had become obscured. As I have listened to the parents accounts, particularly those of the father it is plain to see that M was genuinely unhappy in Israel for all the reasons I have set out. Ironically, if the father had been supportive to the mother and cooperated with her, things may well have been very different. If his objective was as, I consider it to be have been, slowly to integrate M into Israeli life and in to his family then the manner in which he approached his goal was ultimately the chief obstruction to it. In other words he was the author of his own misfortune. Ultimately it prevented M achieving that “sufficient degree of stability to amount to a change in residence”

In his erudite skeleton argument Mr Hale draws my attention to ‘In the matter of LC (Children)[2014] UKSC 1 a 1980 Hague Convention case where the Supreme Court considered ‘integration’ and the significance of the subjective experience of the child. Lord Wilson re-emphasised as I have done in this judgment that

“ the clear test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social environment there” (para 1)

This has been the focus of my judgment, but it is also important to recognise that in evaluating the extent of integration into a new environment this as Lord Wilson says

“must encompass more than the surface features of her life there” (para37)

In this enquiry I have been able, with the assistance of the Cafcass report, to dive below the ‘surface’ of M’s life and to understand something of her emotional as well as her physical experience of life in Israel. I accept what she has said i.e. that it was for her at times ‘too hot’; ‘horrible’ and ‘scary’ and that to return her would be to ‘make her sad’. It is to me plain that she was unable to settle and to integrate which for this otherwise sociable little girl was distressing.

Having analysed my conclusions in the way that I have it follows that I need say nothing in relation to the Article 13B submissions. I am properly reminded by both Counsel, that I must nonetheless address the Father’s application under the inherent jurisdiction. This has not received much attention from either Counsel either during the course of oral submissions or in their respective skeleton arguments. Mr Hale makes his points at para 56 & 57 of his skeleton:

Mr Gupta addresses it at Para 54 and 55 of his skeleton argument:

All this said I have not the slightest doubt that her Father is and will continue to be very important to M emotionally, culturally and in terms of her own identity. It is a relationship that I believe the mother recognises the importance of and I hope both parents will appreciate the need to nurture it.