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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AI v MT [2013] EWHC 100 (Fam) (30 January 2013) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2013/100.html Cite as: [2013] EWHC 100 (Fam) |
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This judgment is being handed down in private on 30th January 2013. It consists of 16 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
FAMILY DIVISION
IN THE MATTER OF RAI and MI (CHILDREN)
AND IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF THE INHERENT JURISDICTION
Strand, London, WC2A 2LL |
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B e f o r e :
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AI |
Applicant |
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- and - |
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MT |
Respondent |
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Marcus Scott-Manderson QC and Teertha Gupta QC (instructed by Manches LLP) for the Respondent
Hearing dates: 27th April 2012
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Crown Copyright ©
The Honourable Mr. Justice Baker :
INTRODUCTION
BACKGROUND
"There are two implicit basic theories used in Jewish Law to analyse child custody matters and different rabbinic decisors are inclined to accept one or the other… one theory grants parents certain rights regarding their children while also considering the interests of the child while the other theory focuses nearly exclusively on the best interests of the child… "
According to Rabbi Broyde, the Beth Din of America is more inclined to accept the latter approach. The article also discussed the relationship between the rabbinical rules and the secular law.
"On a practical level it is very common that a Beth Din can enforce their decisions concerning child custody in the United States only when secular courts permit them to be enforced. While in most areas of commercial law secular courts will honour the ruling of a Beth Din when there is a binding arbitration agreement, even if the result is different from that which would be reached under secular law, such is not the case in child custody rulings as secular courts review de novo all child custody determinations. Thus it is very common for the losing party in a child custody determination to appeal to the secular courts to overturn the ruling of the Beth Din… The courts additionally have had the role of parens patriae, or super parent, in protecting the best interests of the child in marital disputes. Thus courts either have rejected the use of arbitration for child custody disputes or have only upheld child custody awards if they are in the best interests of the child. The child custody award of a Beth Din will be reviewed completely if one parent or guardian so requests where the award of the Beth Din is accepted as evidence by the court. While de novo review does not necessarily mean that an arbitration award will be vacated by the court, the Beth Din's award is subject to a great deal of scrutiny by the court. Essentially the courts will show some deference to the original arbitration award, but use their independent judgment to determine whether to uphold the award."
"At our Beth Din the rabbis follow Halacha in connection with resolving child custody disputes such as the one you describe. In conjunction with Halacha the best interests of the children are the primary consideration in resolving cases like this. Procedurally Rabbi Geldzehler will hear the positions of both parties in person before any decision can be rendered… Rabbi Geldzehler is authorised to perform Geteen (Jewish divorces) at the rabbinical court of our base Beth Din and all the Geteen performed therein are acceptable by all rabbinical courts and orthodox synagogues around the world… the Pasak (arbitrators' award) of Rabbi Geldzehler is recognised by all rabbinical courts… Both parties sign an arbitration agreement to submit to binding arbitration all the controversies between the parties, which also states that "the parties submit themselves to the personal jurisdiction of the Court of the State of New York and/or New Jersey and/or in any court of competent jurisdiction for any action or proceeding to confirm or enforce a decree of the arbitrators pursuant to article 75 of the New York civil practice law and rules." Although the matters of child custody and visitation are not legally binding in the New York state courts, most arbitration awards regarding child custody and visitation are recognised by the courts and gets the judges' seal of approval."
UPON the parties agreeing and the court recording that in any event the decision of "The New York Beth Din" [defined as meaning a Beth Din in New York presided over by Rabbi Geldzehler concerning where and with whom the children shall reside will be placed before this court for its consideration pursuant to undertaking (4) below …
AND UPON the father undertaking to issue and file an originating summons under the inherent jurisdiction forthwith so that, for the avoidance of doubt, the children both remain subject to the inherent jurisdiction of England and Wales save in respect of a summary return
AND UPON the court declaring and the parties acknowledging that (1) nothing in this order ousts the jurisdiction that this court may have to determine issues arising out of the marriage between the parties and/or concerning the children, and (2) if required to exercise such jurisdiction the court will give appropriate determination of any arbitration pursuant to the arrangements set out below
AND UPON the parties agreeing to enter arbitration: (1) before … The New York Beth Din … (2) that their intention is to abide by the determination of that arbitration; (3) but they each retain the right not to abide by the determination of that arbitration in the event that it is (a) plainly unfair, or (b) contrary to the welfare of the children
AND UPON the parties inviting the court to make the orders set out below and to accept the undertakings
AND UPON the parties giving the undertakings set out in the schedule below, they agreeing and understanding, voluntarily and on legal advice, that such undertakings shall be fully enforceable before the courts of England and Wales in respect of any future application for committal and shall be binding and enforceable upon the parties in the Courts of Ontario and worldwide, subject to the domestic internal law of the relevant State
AND, without prejudice to any determination in The New York Beth Din, upon the father and the mother agreeing in respect of the Hague Convention 1980 and the summary return proceedings under the inherent jurisdiction of the High Court: (1) that the father agrees that the children shall not be summarily returned to Ontario Canada whether pursuant to the Hague Convention 1980 or the inherent jurisdiction of this Court … (2) the father agrees accordingly to the immediate and permanent cessation of any application in respect of summary return of the children to Ontario in respect of the asserted removal and retention of the children as set out in the originating summons dated 2nd October 2009; (3) that the father will not seek to make any further application worldwide for the summary return of the children pursuant to the Hague Convention 1980
AND UPON the parties agreeing that the recital provided above and paragraph 1 below shall not in any way prevent the children being returned to Canada or remaining in Enland on a long term basis if that is part of a determination of The New York Beth Din
AND UPON the court not making any finding of fact as to either the parties' or the children's habitual residence
AND FURTHER to the order of today's date granting the mother safe passage with the children to and from the USA to attend arbitration before The New York Beth Din ….
BY CONSENT, IT IS ORDERED that
(1) The father's application for the summary return of the children to Ontario Canada (a) pursuant to the Hague Convention 1980 and (b) under the inherent jurisdiction of the High Court be dismissed.
(2) The children be made wards of this court during their minority or until further order.
(3) [Provisions as to passports]
(4) [Provisions as to disclosure of the order]
(5) Any future applications relating to this order reserved to Baker J.
(6) [Provisions as to future listing]
(7) No order as to costs
SCHEDULE OF UNDERTAKINGS
The father and the mother agree that the undertakings herein are provided for the purpose of achieving a settlement of the following matters (set out below) in issue between the parties, such settlement to be determined by The New York Beth Din, both parties having been advised by their legal representatives about, and understand the consequences of a failure to comply with the undertakings that they provide below:
AND UPON the father and the mother both freely and voluntarily undertaking to this court the following and accepting to be bound by the undertakings herein in this court, the courts of Ontario and all courts worldwide (the father and the mother agreeing that these undertakings shall not be relied on to found jurisdiction in the courts of England and Wales or Ontario or any other court worldwide save for The New York Beth Din, and save as to questions of enforceability of such undertakings):
(1) As soon as possible to attend and participate in The New York Beth Din
(2) That they agree that the arbitration in the New York Beth Din shall consider and make determination as to the following matters: (a) where and with whom the children will reside and for what amounts of time; (b) all financial issues; (c) the jurisdiction in which the civil divorce will proceed on an uncontested basis; (d) any issues relating to the father granting the mother a Get.
(3) That they shall both proceed expeditiously in seeking a determination by arbitration in The New York Beth Din.
(4) That they will each following the determination of the said arbitration expeditiously apply to convert any determination of the arbitration in The New York Beth Din (a) in so far as it deals with where and with whom the children shall reside into orders of this court and in such other jurisdiction as may be directed by Rabbi Geldzehler; (b) in so far as it deals with all other matters into orders of this court and/or in such other jurisdiction as may be directed by Rabbi Geldzehler, and in the event that the Rabbi does not nominate a jurisdiction, the parties are released from their undertaking at (5) below.
(5) That they will each expeditiously obtain an indefinite stay of all other proceedings taken by them against the other in respect of all matters relating to themselves and the children in the courts of Ontario and England and Wales and save in an emergency will not bring any fresh proceedings worldwide, save (a) to reflect as may be necessary the determination of the said arbitration of The New York Beth Din on the basis that neither will seek costs against the other of obtaining such stay, and (b) to facilitate and enforce the safe passage of the mother and the children to and from New York.
"I make this decision on the basis of the welfare of A which is my paramount consideration. In the 12th February order the Court declared that in exercising its jurisdiction in respect of the children it would give appropriate consideration to any arbitration made by the New York Beth Din. In this case I am satisfied that the New York Beth Din has had the opportunity to consider all the points made by the mother today, who had representation at the Beth Din. I do attach weight to the Beth Din's decision. However, if I were independently of the view that it was not in the child's best interests I would unhesitatingly say so and refuse to order it, notwithstanding the very great respect this Court has for the deliberations of the Beth Din."
(1) that the order was agreed between the father and the mother following, and in accordance with, the final award of the New York Beth Din dated 19th September 2011;
(2) that, insofar as there were differences between the final award of the New York Beth Din and the terms of this order, in respect of matters of substance and matters of interpretation, the terms of this order were to be preferred;
(3) that the court had not seen any financial disclosure but that such disclosure had been given to the New York Beth Din;
(4) that the parties agreed and accepted that the financial agreements set out in the schedule may be contrary to legal advice from their English solicitors, their respective barristers having not been instructed to provide any advice on the financial matters set out below;
(5) that the parties agreed, and the court declared, that the courts of England and Wales were the jurisdiction for enforcement of the terms of the order; and
(6) that the agreements represented settlement of matters between themselves following the breakdown of the parties' marriage, including matters relating to the exercise of parental responsibility in relation to, and matters in respect of the welfare of, the children, and all claims between the parties of a financial nature arising out of the marriage, and neither party would commence or pursue any other proceedings arising out of this marriage in this jurisdiction or elsewhere save for proceedings for a civil divorce.
DISCUSSION
"In all non-Convention cases the courts have consistently held that they must act in accordance with the welfare of the individual child. If they did decide to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration."
"It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed we do not have any fixed concept of what will be in the best interests of the individual child… We are not so arrogant as to think that we know best… Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well known checklist in section 1 (3) of the Children Act 1989: These include his own wishes and feelings, his physical and emotional and educational needs, and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one."
"there is no case, however conflicted, which is not potentially open to successful mediation, even if mediation has not been attempted or has failed during the trial process"
In international child abduction cases, the charity Reunite, has run a highly successful mediation scheme for a number of years. It is important to add, however, that, whilst the court will encourage parties to try to resolve disputes by agreement, and will permit parties fully to participate in any process designed to achieve an agreed settlement, including where appropriate a process established by the culture or faith to which they belong or adhere, it must be careful to avoid endorsing any process that has or might have the effect of ousting the jurisdiction of the court, particularly (but not exclusively) in respect of the welfare of children.