Re S (A Child) (Abduction: Grave Risk of Harm)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Date | 2002 |
| Year | 2002 |
| Court | Court of Appeal (Civil Division) |
Child abduction – Removal from jurisdiction – Mother alleging grave risk that child’s return to Israel from United Kingdom would expose child to physical and psychological harm and would otherwise place child in intolerable situation – Judge ordering mother to return child to Israel – Whether judge in error – Hague Convention on the Civil Aspects of International Child Abduction 1980, art 13(b) – Civil Procedure Rules 1998, rr 3.9, 52.3(6).
The mother and father were naturalised Israeli citizens and had married in 1999 and set up home in Jerusalem. Their daughter was born in July 2000. The marriage ran into difficulties and in August 2001, the mother and the child left Israel for the United Kingdom and had since lived with the mother’s parents in this country. In October 2001, the father issued an originating summons under the Hague Convention on the Civil Aspects of International Child Abduction 1980 seeking an order for the return of the child to Israel. The mother 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. However, the mother raised a defence under art 13(b) of the Convention alleging that there was a grave risk that the child’s return to Israel would expose her to physical and psychological harm and otherwise place the child in an intolerable situation. The mother contended, inter alia, that the child was at grave risk of harm in Israel given the current and ongoing security situation and that she herself would be at grave risk of suffering further psychological harm if she were to return to Israel and that in turn would cause harm to the child. The mother provided medical evidence which stated that she suffered from a recognised psychiatric condition, namely a panic disorder and agoraphobia, of which the precipitating cause had been the security situation in Israel. At a directions hearing, the judge found that the mother had not raised a prima facie defence to the Convention in relation to her psychological problem, but that the defence in relation to the current position in Israel was available. At the final hearing, the judge found that there were anxieties and uncertainties in the minds of everyone who lived in Israel, and that the risk of direct harm befalling the child as a result of acts of terrorism was not so great as the mother had contended, so that that part of the mother’s case had not been made out. The judge further found that the
mother’s psychological state were she to return to Israel would not prevent her from fully engaging in litigation over the child’s future. The judge concluded that none of the anxieties and tensions in Israel generally and for the mother in particular nor the unpredictable and sporadic attacks, individually or cumulatively, would place the child in an intolerable situation. The judge was, therefore, entirely satisfied that she should order the child’s return. The mother initially appeared to accept that order but following an escalation of violence in Israel, the mother appealed against the judge’s decision. She also sought permission to appeal out of time against the order at the directions hearing.
Held – (1) The proper approach for the court considering a defence alleging a grave risk of exposure to physical or psychological harm was to consider the grave risk of that harm as a discrete question, but then to stand back and test the conclusion by looking at art 13(b) in the round, reflecting whether the risk of harm was established to an extent which would have led one to say that a child would be placed in an intolerable situation if returned. The word ‘intolerable’ was so strong that by its very meaning and connotation it set the hurdle high. The task of the court was the standard task of finding the relevant facts and making the necessary value judgment. Even though the return of a child might seem contrary to his/her welfare, the court had to steel itself against too freely allowing the exceptional defence under art 13(b) and the defendant had to be put to strict proof. In the instant case, when assessing the risk of physical harm arising out of the security situation in Israel, the judge had clearly taken all the relevant information into account and had correctly asked herself what was the actual risk to the child of returning there. On the evidence before her, her conclusion had been one to which she had been entitled to come and on a review of the evidence, and taking into account developments since the trial, the court could find no grounds for interfering with her decision. In respect of the mother’s psychological condition, the judge’s hands had been tied by an earlier decision at the directions hearing that that issue had not raised a prima facie defence. The question for consideration had been whether the child was at grave risk from harm from the breakdown of the mother’s health and the mother had not satisfied the court that the child would suffer to that extent. The court was satisfied that the mother would find the situation in Israel intolerable but that was not the test. The question was whether, having regard to the purpose of the Convention, the limited exception with which the court was dealing, and the international obligations which arose under it, the court could be satisfied that the scale of violence and the mother’s reaction to it had produced a situation which the child should not be required to endure. In the instant case, the court was not satisfied that the real and worrying problems which the mother and child would face in Israel produced a situation which could be said to be ‘intolerable’. Accordingly, the appeal would be dismissed.
(2) The test under CPR 52.3(6) on whether to grant permission to appeal was whether the prospects of success were realistic as opposed to fanciful. In
the instant case, the mother had failed to comply with the time limit set out in CPR 3.9 for applications to extend time. The overwhelming weight of factors, including, inter alia, that the effect of granting an extension of time to appeal and allowing the appeal against the judge’s order would be to cause substantial delay compelled the court to dismiss the mother’s application for an extension of time. Accordingly, the application for permission to appeal out of time would be dismissed.
Re C (abduction) (grave risk of psychological harm) [1999] 2 FCR 507 considered.
Cases referred to in judgmentA (a minor) (abduction), Re [1988] 1 FLR 365, CA.
C (a minor) (abduction), Re [1989] FCR 197; sub nom C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER 465, [1989] 1 WLR 654; sub nom Re C (a minor) (abduction) [1989] 1 FLR 403, CA.
C (abduction) (grave risk of psychological harm), Re[1999] 2 FCR 507, [1999] 1 FLR 1145, CA.
C(B) (child abduction: risk of harm), Re[1999] 3 FCR 510; sub nom Re C (abduction: grave risk of physical or psychological harm) [1999] 2 FLR 478, CA.
Davies v Taylor [1974] AC 207, [1972] 3 All ER 836, [1972] 3 WLR 801, HL.
DP v Commonwealth Central Authority (2001) 180 ALR 402, Aust HC.
F (a minor) (abduction: risk if returned), Re[1996] 1 FCR 379; sub nom Re F (a minor) (abduction: custody rights abroad) [1995] Fam 224, [1995] 3 All ER 641, [1995] 3 WLR 339, [1995] 2 FLR 31, CA.
Friedrich v Friedrich (1996) 78 F 3d 1060, US Ct of Apps (6th Cir).
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509, [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
TB v JB (abduction: grave risk of harm) [2001] 2 FCR 497, [2001] 2 FLR 515, CA.
Thomson v Thomson (1994) 119 DLR (4th) 253, Can SC.
AppealThe mother appealed against the decision of Hogg J, dated 14 March 2002, whereby she ordered that the mother should return the child to the jurisdiction of Israel. The father had begun the proceedings seeking an order for the return. The mother also sought permission to appeal out of time from the decision of Bracewell J, dated 4 February 2002, which prevented the mother introducing fresh evidence of her psychological condition in order to raise a defence under art 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The facts are set out in the judgment of the court.
Charles Howard QC and Marcus Scott-Manderson for the mother.
Henry Setright QC and Anita Guha for the father.
Cur adv vult
3 July 2002. The following judgment of the court was delivered.
WARD LJ(delivering the judgment of the court).
The problem[1] 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 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 arts 3 and 12 of the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention). 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[2] The mother was born in the United Kingdom 29 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 36. 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 August 1999. The mother soon became pregnant and...
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