Re S (Child) (Abduction: Custody rights)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward |
| Judgment Date | 03 July 2002 |
| Neutral Citation | [2002] EWCA Civ 908 |
| Docket Number | Case No: B1/2002/0795 & 0801 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 2002 |
[2002] EWCA Civ 908
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Sedley and
Lord Justice Dyson
Case No: B1/2002/0795 & 0801
Mr C. Howard Q.C. and Mr M. Scott-Manderson (instructed by Messrs Dawson Cornwell) for the Appellant
Mr H. Setright Q.C. and Miss A. Guha (instructed by Messrs Mishcon de Reya) for the Respondent
Lord Justice Ward delivering the judgment of the Court:
The Problem.
Reports and pictures of events in Israel and the West Bank have filled our newspapers and television screens for months. Now this court is asked to decide whether there is a grave risk that the return of a child to Israel would expose that child to physical or psychological harm or otherwise place her in an intolerable situation. On 14 th March 2002 Hogg J. ordered that a mother who had wrongfully removed her baby daughter from Israel should return her forthwith to the jurisdiction of Israel pursuant to Articles 3 and 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The question is whether she was wrong to do so. She also ordered that the identity of the parties, of the town in which the family home is situated and of the child are not to be disclosed. That order remains in force.
The Background.
The mother was born in the United Kingdom twenty-nine years ago. She went to Israel in 1995 and lived on a Kibbutz but later began to read at an Israeli University for a Master's Degree in Molecular Biology. The father is thirty-six. He was born in Australia but took up residence in Israel in 1992. Both mother and father later became Israeli citizens. They met in February 1999 and after a very short acquaintance became engaged and then married in Jerusalem on 26 th August 1999. The mother soon became pregnant and gave up her studies. They moved into a suburb of Jerusalem. On 20 th July 2000 their daughter was born.
It does not need much imaginative reading of the papers before us to appreciate that this was an ill-starred couple. The marriage was soon in difficulties and there were increasing problems between them. The detail of the deterioration in their marriage is not material to the present issue. It is sufficient to record that on the day after their second wedding anniversary matters came boiling to a head and the mother and child left the father. On the following day, 28 th August 2001, she and the child left Israel for the United Kingdom. They have since then lived with her parents in this country. All attempts to effect reconciliation have failed.
On 15 th October 2001 the father issued an Originating Summons under the Hague Convention on the Civil Aspects of International Child Abduction seeking an order for the return of the child to Israel. The mother has never disputed that the father was exercising rights of custody under the Convention, that the child's habitual residence was in Israel and that her removal of the child was wrongful within the meaning of the Convention. She raised a defence under Article 13(b) alleging that:—
"There is a grave risk that the minor's return to Israel would expose the minor to physical and psychological harm and otherwise place the minor in an intolerable situation.
(a) The minor is at risk of psychological and physical harm in the jurisdiction of Israel given the current and ongoing security situation.
(b) The defendant is the minor's primary carer. The defendant is at grave risk of physical harm if she were to return to the jurisdiction of Israel. Further the defendant is at grave risk of suffering further psychological harm if she were to return to Israel and this in turn will cause harm to the minor. Medical evidence will be filed in this regard.
(c) The plaintiff is unable to provide primary care for the minor. The minor would suffer grave harm without the day to day care of the defendant."
The Interlocutory Directions.
The matter came before the President, Dame Elizabeth Butler-Sloss D.B.E., on 11 th December 2001 for the purpose of giving directions for the full hearing of the matter. The President observed in the course of argument:—
"The next point is that I cannot see at the moment that under Article 13(b) the psychiatric problems of the mother, or probably quite justified fears of the mother, shared by every other citizen of Israel, is in itself a reason for not returning. That seems to be possibly a matter of law rather than a matter of fact …"
She considered that a further hearing should be fixed for the mother "to demonstrate that this is a case which can be run". She also directed in paragraph 4 of the order that was made that the parties were to attend for the judge to consider whether oral evidence should be given by the parties and she also directed Doctor M, a consultant psychiatrist instructed on the mother's behalf, and Mrs W, her psychodynamic counsellor, to attend to give oral evidence if necessary.
That further directions hearing came before Bracewell J. on 4 th February 2002. She identified the issue before her in this way:—
"This case is listed before me for directions on the order of the President of this Division, who dealt with the matter on 11 th December 2001 and ordered that a further directions appointment should be heard after the filing of evidence in skeleton arguments in order to determine whether prima facie there could be a valid defence to the application for the return of a child … to the state of Israel."
She characterised the mother's first defence in this way:—
"Firstly, she relies upon her own psychological problems in seeking to oppose a return of the child to Israel, on the basis that her particular disturbance would adversely affect her ability to return and care for the child, that is this very young child (only eighteen months old) and she has always been the main carer."
Having identified the second defence (a grave risk of physical harm if returned), she went straight into her judgment which was no more than this:—
"I do not consider that the mother has raised a prima facie defence in relation to her psychological problem. It has been made clear in many cases, and in particular in a Court of Appeal decision Re C [1999] 1 FLR 1145, that a very high threshold has been set in order to establish a defence of a grave risk of physical or psychological harm, or of a placement of a child in an intolerable situation. The court needs to have clear and compelling evidence, and it has to be substantial evidence and of a severity which is much more than inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return, and mother is not allowed to rely on adverse conditions which she has created. I find within the papers there is nothing that would justify the putting of that particular argument."
She dealt with the second part of the defence which related to the current position in Israel which she considered to be "truly alarming in relation to loss of life and injury" and she held that that defence was available to the mother to put forward, "although I am not optimistic about the outcome".
Although the order as drawn simply discharged the paragraphs of the President's order requiring the attendance of the parties and their witnesses, it has been agreed between counsel that they readily understood and proceeded upon the basis that the effect of Bracewell J.'s order was that she had struck out the mother's defence under Article 13(b) in which she sought to rely on her own psychological problems.
No application was made to Bracewell J. for permission to appeal her judgment. No application for permission was made within time to this court. Instead the case proceeded to a final hearing in the Family Division.
The Final Hearing before Hogg J. on 14th March 2002.
In the skeleton argument prepared for that hearing, counsel for the mother said this:—
"The mother seeks to make a further application to rely on the report of Dr M, consultant psychiatrist, dated 15 th November 2001 and a letter from Mrs R.W., counsellor, dated 18 th November 2001, based upon the change in circumstances evidenced by the considerable escalation in terrorist atrocities currently pertaining in Israel at the date of this hearing. … It is therefore submitted that the evidence supports the concern being rightly held that this mother is not in a fit state to endure the obvious pressures of accompanying a child to Israel at the present time."
There was no formal application setting out the grounds upon which the defendant would be entitled to re-open the matter not having sought to appeal Bracewell J.'s order. Counsel for the father was somewhat taken by surprise.
Hogg J. correctly directed herself in accordance with recent observations of this court, including Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, the case to which Bracewell J. had referred. After a review of the earlier cases, Ward L.J. said at p.1154:—
"There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."
She noted a comment of Hale L.J. in TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, 526 that:—
"… it is possible to hypothesise circumstances in which events since the...
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