UK – S – 2002 (Return Ordered)(Grave Risk) (Return to a country at war) (Intolerable Situation) “S” A Child. This case is on appeal from the High Court of Justice Family Division. The mother had taken the child from Israel. The family court ordered the return of the child to Israel. The mother claims grave risk to herself and the baby if they are returned to Israel due to the war like conditions. Also the child would suffer without the “day to day care of the defendant”. The appeal was denied.
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“S” (A Child) [UK 2002]Case No: B1/2002/0795 & 0801
12 International Abduction [USA 2002]
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The court has made an order in this case restricting
disclosure, or reporting, of information in this judgment.
Anyone to whom a copy of this judgment is supplied, or who
reads it in whatever circumstances, is bound by that order,
details of which may be obtained from the clerk of the
court.
Case No: B1/2002/0795 & 0801
[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
Date: 3rd July
2002
Before :
LORD JUSTICE WARD
LORD JUSTICE SEDLEY
and
LORD JUSTICE DYSON
– – – – – – – – – – – – – – – – – – – – –
Between :
——————
S (A Child)
——————
– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –
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
Hearing dates : 29th April 2002
– – – – – – – – – – – – – – – – – – – – –
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT
TO EDITORIAL CORRECTIONS)
Lord Justice Ward delivering the judgment of the Court:
The Problem.
001 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 14th
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.
002 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 26th August 1999. The mother soon became
pregnant and gave up her studies. They moved into a suburb
of Jerusalem. On 20th July 2000 their daughter was born.
003 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, 28th 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.
004 On 15th 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.
005 The matter came before the President, Dame Elizabeth
Butler-Sloss D.B.E., on 11th 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.
006 That further directions hearing came before Bracewell
J. on 4th 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 11th 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.”
007 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.”
008 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.
009 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.
010 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 15th November 2001 and a
letter from Mrs R.W., counsellor, dated 18th
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.
011 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.”
012 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
departure have created such a risk. Obvious
examples are the outbreak of civil war or a
destruction of the children’s home and
livelihood.”
013 The judge took account of the problems and dangers
that have faced generations in the Middle East. She
observed the advice of the Foreign and Commonwealth Office
of 12th March that the risk of terrorist bomb attacks is
“very high”. She noted the chronology of incidents of
terrorist attack killing and maiming many people in the
recent months. She set herself this question:-
“I have to ask myself what is the actual risk
to this child of returning to Israel, the
country of her birth and of her habitual
residence, and I feel I must look at the
realities of the situation which would present
to her.”
014 She took account of the fact that the mother could
return to a comparatively safe area of the country and that
“life continues in Israel”. She noted “an interesting
document” setting out that the number of deaths from road
traffic accidents exceeded the number of deaths from acts of
terrorism. She observed that:-
“There is no organised state evacuation or mass
exodus. There is no direct threat to [the
child] or her parents. No one has threatened
them specifically. The threat, if there is
one, is one of a general risk of harm, of being
caught up in an unpredictable attack, being in
the wrong place at the wrong time.”
15.She came to this conclusion:-
“How great is that risk? Is it a risk which
falls within the test set out by Ward L.J. in
Re C? I acknowledge the situation has worsened
since the mother and child left Israel in
August 2001. But, is it so great a risk of
real or actual harm being caused to [the child]
which would prevent me from ordering the
child’s return? I come to the conclusion that,
while the population of Israel has to be
watchful, and there must be anxieties and
uncertainties in everyone’s mind who live in
that country, the risk of direct harm befalling
[the child] as a result of acts of terrorism is
not as great as the mother would wish me to
believe. Accordingly she has not made out that
part of her case.”
016 During the course of that hearing the mother had
assured the judge that if the child were ordered to be
returned to Israel, then she, the mother, would accompany
her and care for her pending the outcome of any welfare
hearing as to the child’s future. That led the judge to
consider the application to rely upon the mother’s
psychological state as a reason for not returning the child.
Hogg J. categorised that as follows:-
“The mother now, through counsel, asserts that
such is her psychological state that were she
to return to Israel she would become so anxious
that she would be unable to fully engage in any
litigation relating to [the child] or even be a
witness.”
17.She dealt with that as follows:-
“A further report and addendum has been
produced, and I allowed it in de bene esse,
from the counsellor who reported in November
and whose report was before Bracewell J. Those
extra documents add little, but confirm that,
in addition to the mother’s anxiety and fears
of returning to Israel, that many of the
mother’s current and continuing problems relate
to the deterioration and breakdown of her
relationship with her husband; the
circumstances of that breakdown, as viewed by
the mother; the anxiety relating to this
hearing, and, no doubt, the future care of [the
child], and her own future; and of contact to
[the child] with the father. Moreover, the
report reads that:
“On reflection, the mother recognises that she
may have acted hastily in leaving the country,
but she was so distressed by the strain she had
been living under and the incident with her
husband and her daughter, she could stay no
longer”.
And later in the report:
“The counselling sessions have allowed the
mother to get in touch with her inner fears.
The trauma and anxiety she experienced as a
result of the political situation is not
affecting her to the same degree”.
While the mother may have anxieties concerning
the security situation in Israel, as many in
that country must do, she undoubtedly has no
motivation to return there, her marriage having
ended in animosity. The new reports have not
caused me to reconsider the view and decision
expressed by Bracewell J., and there is no
evidence before me to suggest that the mother
would not fully engage in litigation over [the
child’s] future, give her instructions, and
give evidence.”
018 Finally the judge considered whether the return of
the child would place her in an intolerable position. She
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.
019 Accordingly she was “entirely satisfied” that she
should order the child’s return. As is customary in this
jurisdiction the order contained a number of undertakings by
both parties to provide a satisfactory basis for the return
which it was agreed should be no later than 5th April 2002.
The mother did not seek permission from the judge to appeal
her order. Instead she appeared to accept it. Plans were
accordingly made for the return journey.
The Change of Heart.
020 On Thursday, 4th April, the mother informed the
father that the worsening situation in Israel and the
dramatic events that had happened after the order of Hogg J.
had effected a fundamental change and exacerbated her fears
and anxieties. She applied to Wall J. for a stay of
execution of Hogg J.’s order pending an appeal. Wall J.
accepted undertakings which gave her time to move this
court. On 15th April we granted a stay pending her
applications for extensions of time and for permission to
appeal not only Hogg J.’s order but also Bracewell J.’s much
earlier order. That came before the full court on 29th
April when we heard full argument even though we had
reserved our decision on whether or not to extend time and
grant permission actually to appeal. We allowed fresh
evidence to be put in in order that we could be fully
informed as to the up-to-date position. Furthermore, since
judges, contrary to widespread popular belief, do live in
the real world, we cannot be unaware of nor fail to take
account of dramatic changes in the Middle East which occur
almost daily.
Procedural Issues for the Court of Appeal.
021 Before turning to the merits, it may be useful to set
out the principles which must inform our decision. We begin
with the applications to extend time. The time for appeal
prescribed by the Rules is 14 days. The court has the
power, conferred by Part 3.1 of the Civil Procedure Rules
1998, to extend time. In considering such an application,
the court must always bear in mind that time requirements
laid down by the rules are not merely targets to be
attempted; they are rules to be observed. Justice may be
defeated if there is laxity in that observance. If, as
here, the sanction imposed in the event of non-compliance is
that a party may be shut out from an appeal, then any
application to extend time involves the seeking of relief
from that sanction and that brings CPR 3.9 into play. That
provides:-
“3.9(1) On an application for relief from any
sanction imposed for a failure to comply with
any rule … the court will consider all the
circumstances including –
(a) the interests of the administration of
justice;
(b) whether the application for relief has
been made promptly;
(c) whether the failure to comply was
intentional;
(d) whether there is a good explanation for
the failure;
(e) the extent to which the party in default
has complied with other Rules … ;
(f) whether the failure to comply was caused
by the party or his legal representative;
(g) whether the trial date or the likely date
can still be met if relief is granted;
(h) the effect which the failure to comply had
on each party; and
(i) the effect which the granting of relief
would have on each party.”
022 An additional consideration for the Court of Appeal
to bear in mind may also be the merits of the proposed
appeal and its prospects of success. Time will not be
extended to pursue a hopeless appeal. A more benign
approach will be taken if the prospects of success are high.
The application must be judged with the overriding objective
of rules as set out in CPR 1 in mind. Justice is the
ultimate criterion.
023 Permission to appeal will only be given under CPR
52.3(6) where:-
“(a) The court considers that the appeal would
have a real prospect of success; or
(a) There is some other compelling reason why
the appeal should be heard.”
The test is whether the prospects are realistic as opposed
to fanciful.
024 Under CPR 52.11 appeals are usually limited to a
review of the decision of the lower court, not a rehearing,
and the Appeal Court will allow an appeal only where the
decision of the lower court was wrong or unjust because of a
serious procedural or other irregularity in the proceedings
in the lower court. The Appeal Court may draw any inference
of fact which it considers justified on the evidence.
025 Although it is possible to appeal against a finding
of fact, it is notoriously difficult to succeed in so doing.
Where findings of fact are made based on the demeanour of a
witness, the Appeal Court will seldom interfere because the
trial judge has a special advantage over the appellate
judge. Where, however, the evidence is written, the Appeal
Court is in as good a position to decide the facts as the
court below with this reservation. It should always be
remembered that all international child abductions cases are
tried in the High Court and the President and the seventeen
judges of the Family Division have built up a wealth of
expertise which is probably unique. There is a steady
stream of applications under the Hague Convention. During
the past four years the United Kingdom annual average has
been 179. Since that work is handled by a comparatively
small number of specialist solicitors and barristers and is
heard by the limited number of judges, the judges have
unrivalled experience and whilst the Appeal Court will not
surrender its duty to review the matter, it must pay full
respect to the decisions of the judges of the Family
Division and should interfere only where plainly satisfied
the judgment was wrong.
026 Fresh evidence will be admitted by the Court of
Appeal in the exercise of the court’s discretion if it is
necessary to inform the court of new facts and matters which
have arisen since the decision under appeal. Even though
the welfare of the child is not the paramount consideration
in this case, the interests of the child are engaged, as are
our International Treaty obligations, and the court is not
likely to refuse to admit that fresh evidence. The approach
of the Court of Appeal is to consider first whether or not
the appeal should be allowed on the facts as they appeared
to the judge. If so, there is no need to take the fresh
evidence into account. If, however, the appeal would
otherwise be dismissed, then the court must assess whether
the fresh evidence should lead to the appeal being allowed.
The Hague Convention on the Civil Aspects of International
Child Abduction.
027 The purpose of the Convention is well known.
Nevertheless it is important that it should not be
forgotten, especially in a case like this where delicate
judgment is required on political events in the Middle East
which, whilst they may be at the centre of a world stage,
are material for present purposes only insofar as they have
an impact on the life on this child. This is a judgment
about the risks to which the child would be exposed: it is
not a political judgment. It is a judgment which must
strive to give effect to the predominant objective of the
Convention which is that a child wrongfully removed from the
country of her habitual residence should be promptly
returned there so that the courts of that country can
resolve with whom the child is to live. For reinforcement
of the view that the prompt return of the child is a primary
purpose of the Convention, one need only look to the article
The Hague Convention on International Child Abduction,
(1981) 30 I.C.L.Q. 537, 542-543 by A.E. Anton, the Chairman
of the Special Commission responsible for drafting the
Convention. He wrote:-
“The Special Commission also considered – and,
until recently, this would have been an equally
novel proposition for judges in common law
countries – that the courts of the State
addressed should order the return of the child,
subject to certain limited exceptions, despite
the possibility that further enquiries might
disclose that the child’s welfare would be
better secured by its remaining in that State.
… the primary purpose of the Convention [is],
namely, as Article 1(a) states, to secure the
prompt return of the child wrongfully removed
to or detained in a Contracting State. The
Commission started from the assumption that the
abduction of a child will generally be
prejudicial to its welfare. It followed that,
when a child has been abducted from one country
to another, international mechanisms should be
available to secure its return either
voluntarily or through court proceedings.”
028 This rule of prompt return is subject to very limited
exceptions provided by Articles 13 and 20. Article 20 does
not apply here. Article 13 provides:-
“Notwithstanding the provisions of the
preceding Article [requiring the return of the
child forthwith], the judicial or
administrative authority of the requested State
is not bound to order the return of the child
if the person, institution or other body which
opposes its return establishes that –
(a) the person, institution or other body
having the care of the person of the child was
not actually exercising the custody rights at
the time of removal or retention, or had
consented to or subsequently acquiesced in the
removal or retention; or
(b) there is a grave risk that his or her
return would expose the child to physical or
psychological harm or otherwise place the child
in an intolerable situation.
The judicial or administrative authority may
also refuse to order the return of the child if
it finds that the child objects to being
returned and has attained an age and degree of
maturity at which it is appropriate to take
account of its views.”
029 In this appeal three aspects of Article 13(b) need to
be considered. These points have arisen:-
i)Is the case advanced by the mother capable in law of
amounting to an Article 13(b) defence?
ii)Is there, to use Mr Howard Q.C.’s phrase, some linkage
between the elements of Article 13(b)?
iii)Are the defences to be narrowly circumscribed?
First, are the facts sufficient to found an Article 13(b)
defence?
030 We refer back to the President’s observation at an
early directions appointment questioning whether the
mother’s case was capable in law of amounting to an Article
13(b) defence. The argument was not developed before her
and we can only guess that she was concerned whether the
case here was similar to the well known case of C v C
(Abduction: Rights of Custody) [1989] 1 W.L.R. 654 where a
mother refused to accompany a young child back to Australia
and asserted that the child would suffer harm if he returned
without her. The court would have none of it. The
President, then Butler-Sloss L.J., herself said at p.661:-
“The grave risk of harm arises not from the
return of the child, but the refusal of the
mother to accompany him. … Is a parent to
create a psychological situation and then rely
upon it? If the grave risk of psychological
harm to the child is to be inflicted by the
conduct of the parent who abducted him, then it
would be relied upon by every mother of a young
child who removed him out of the jurisdiction
and refused to return. It would drive a coach
and four through the Convention, at least in
respect of applications relating to young
children. I, for my part, cannot believe that
this is in the interests of international
relations.”
That view has been universally adopted. A mother, who is
the author of her own misfortune, cannot rely on her own
wrongdoing to justify the child’s non-return.
031 This case is quite different. The mother is not
refusing to return. She has not by the taking of some
unreasonable stance created a psychological situation. The
situation has been imposed upon her by external
circumstances. She is, arguably at least for the purpose of
the present discussion, suffering a recognised psychiatric
condition, namely a moderate to severe panic disorder and
agoraphobia of which the precipitating cause was the
security situation in Israel. It is, thus, a reaction to
the troubled times in Israel, not a self-centred flight from
or refusal to return to a place of unhappy memories.
032 Arden L.J. put the point slightly differently in TB v
JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, 542
when she said:-
“The policy of the Convention as set out above
seems to me to require that the evaluation of
risk is to be carried out on the basis that the
abducting parent will take all reasonable steps
to protect herself and her children and that
she cannot rely on her unwillingness to do so
as a factor relevant to the risk.”
This mother is not demonstrating an unwillingness to take
all reasonable steps to protect herself and her child. Her
condition is an illness, not an act of unreasonableness.
Consequently we would not bring her within the group which
deserves such castigation.
033 Subject to that self-centred category, we would not
find it necessary further to confine the identification of
harm or intolerability. We find sympathy with the views of
La Forest J. in the Supreme Court of Canada in Thomson v
Thomson 6 R.F.L. (4th) 406, 328:-
“… from a child-centred perspective, harm is
harm. If the harm were severe enough to meet
the stringent test of the Convention, it would
be irrelevant from whence it came.”
034 Thus in Friedrich v Friedrich [1996] 78 Fed. Rep., 3d
Series, 1060 the United States Court of Appeals, 6th Circuit
held at p.1069 that:-
“… there is a grave risk of harm when return
of the child puts the child in imminent danger
prior to the resolution of the custody dispute
– e.g., returning the child to a zone of war,
famine or disease.”
035 Hale L.J. expressed similar views in TB v JB (cited
above) at p.526. She was commenting on an observation of
Thorpe L.J. in Re C (Abduction: Grave Risk of Physical or
Psychological Harm) [1999] 2 FLR 478, 488 where he said:-
“In my opinion Article 13(b) is given its
proper construction if ordinarily confined to
meet the case whether mother’s motivation for
flight is to remove the child from a family
situation that is damaging the child’s
development.”
036 Hale L.J. said:-
“It is important not to take this too far. It
is not an addition to the statutory text. It
is merely guidance on what is more likely to
surmount the high hurdle presented by Article
13(b). It is a useful way of distinguishing
those cases where the abduction itself has
caused the problems feared from those cases
where it has not. But it is possible to
hypothesise circumstances in which events since
the departure have created such a risk:
obvious examples are the outbreak of civil war
or the destruction of the children’s home and
livelihood.”
Arden and Laws L.JJ agreed with that.
037 Here it may be said, and is said on the mother’s
behalf, that the escalating violence in Israel was a feature
of life there before the mother’s departure and had its
influence upon her and put her in fear even then. These
terrorist attacks are events over which neither she nor the
father have control and over which the courts in Israel have
no control. They are external to the family dynamic and in
our judgment a reactive illness which arguably impairs the
mother’s ability fully and properly to cope with her child
of whom she is the primary carer can amount to an Article
13(b) defence if as a result of her disabilities there is a
grave risk of physical or psychological harm to the child or
if the situation to which the child is being returned is
intolerable within the meaning of that Article.
Consequently we respectfully disagree with the President
when she doubted whether the facts pleaded by the mother
were capable of amounting to a defence as a matter of law.
Whether the case on its facts is strong enough is a matter
to which I will return.
Secondly, is there a linkage between the defences in Article
13(b)?
038 Article 13(b) is dealing with grave risks to which
the child may be exposed by her return. Those are grave
risks of exposure first to physical harm, secondly to
psychological harm, and then the more general risk that
return would otherwise place the child in an intolerable
situation. To the extent that three risks are named, there
are three discrete defences. They are, however, interlinked
by the use of the word “otherwise”. To cite again from La
Forest J.’s judgment in Thomson at p.328:-
“It has been generally accepted that the
Convention mandates a more stringent test than
that advanced by the appellant. In brief,
although the word “grave” modifies “risk” and
not “harm”, this must be read in conjunction
with the clause “or otherwise place the child
in an intolerable situation.” The use of the
word “otherwise” points inescapably to the
conclusion that the physical or psychological
harm contemplated by the first clause of
Article 13(b) is harm to a degree that also
amounts to an intolerable situation.”
039 In support of his conclusion he relied on the
judgment of Nourse L.J. in Re A (A Minor) (Abduction) [1988]
1 FLR 365, 372. There are other dicta to the same effect in
the judgments of our courts, see, for example, Lord
Donaldson of Lymington M.R. in C v C (Abduction: Rights of
Custody) [1989] 1 W.L.R. 654 who said that the words “or
otherwise place the child in an intolerable situation”:
“cast considerable light on the degree of
psychological harm which the Convention has in
mind.”
040 The Australian High Court take the same view: see
for example the judgment of Gleeson C.J. in DP v
Commonwealth Central Authority; JLM v Director-General NSW
Department of Communi [2001] HCA 39, paragraph 9:-
“The discretion not to make an order for return
only exists where there is a grave risk of harm
(the gravity being emphasised by the cognate
reference to an intolerable situation), …”
Kirby J. said in paragraph 132:-
“Similarly, the use of the word “otherwise” in
[Article 13(b)] indicates that the types of
“physical or psychological harm” referred to
must also be such as to place the child in an
“intolerable situation.””
041 There seems to us, therefore, to be considerable
international support for the view that there is a link
between the limbs of Article 13(b). In our judgment, the
proper approach for the court considering a defence alleging
a grave risk of exposure to physical or psychological harm
should be to consider the grave risk of that harm as a
discrete question but then stand back and test the
conclusion by looking at the Article in the round,
reflecting whether the risk of harm is established to an
extent which would lead one to say that the child will be
placed in an intolerable situation if returned.
Thirdly, are the exceptions in Article 13(b) to be narrowly
construed?
042 That was the question before the High Court of
Australia. The majority appeared to be content to accept
the views of this court in Re C (Abduction: Grave risk of
psychological harm) [1999] 1 FLR 1145 at 1154 (to which we
have already referred) saying at paragraph 43 with reference
to Ward L.J.’s judgment:-
“Because what is to be established is a grave
risk of exposure to future harm, it may well be
true to say that a court will not be persuaded
of that without some clear and compelling
evidence.”
043 Nonetheless the majority went on to hold in the next
paragraph that:-
“There is … no evident choice to be made
between a “narrow” and a “broad” construction
of the [Article]. If that is what is meant by
saying that it is to be given a “narrow
construction” it must be rejected. The
exception is to be given the meaning its words
require.”
044 Although Gleeson CJ. found no error of law in the
Full Court’s decision he thought in paragraph 9 that:-
“It is unhelpful to say that [Article 13(b)] is
to be construed narrowly. In a case where
there is no serious question of construction
involved, such a statement may be misunderstood
as meaning that the provision is to be applied
grudgingly. The task of the decision-maker is
to give effect to the [Article] according to
its terms. The meaning of the [Article] is not
difficult to understand; the problem in a
given case is more likely to be found in making
the required judgment. That is not a problem
of construction; it is a problem of
application. It may exist at the level of
finding the primary facts relevant to the
judgement; or at the level of deciding the
conclusion to be drawn from evaluating known
facts.”
045 Time did not permit full argument to be addressed to
us on this point. Our tentative view is that we are not
confident that this court would take the same view as the
majority in the High Court of Australia. It seems to us to
follow that since the court requires compelling and
convincing evidence, then the court is imposing a strict
test and, by being stringent, the court is drawing tight
conditions for return. There is ample authority in this
court that a stringent test is appropriate. For example,
Sir Christopher Slade has said in In re F (A Minor) (Child
Abduction: Rights of Custody Abroad) [1995] Fam. 224, 238:-
“[The courts] are in my view quite right to be
cautious and to apply a stringent test. The
invocation of Article 13(b), with scant
justification, is all too likely to be the last
resort for parents who have wrongfully removed
their children to another jurisdiction.”
In Re C (Abduction: Grave Risk of Physical or Psychological
Harm) [1999] 2 FLR 487, 478 Butler-Sloss L.J. also spoke of
the need to meet “the stringent test required to produce
[the Article 13(b)] defence”. In TB v JB this court
approved Singer J.’s direction that:-
“Authority is multiple in this jurisdiction for
the proposition that this Article 13(b) defence
represents a high hurdle for an abducting
parent to clear in order to open the door to
the discretion not to order return.”
In our judgment, that is now settled law in this
jurisdiction.
046 That seems to coincide with the judgment of Kirby J.
in DP v Commonwealth Central Authority who said at paragraph
142:-
“It is unprofitable to dwell too long on the
complaint about the use of the adverb
“narrowly” as it was used to describe the
approach which the Full Court took to the
construction of the exception invoked under
[Article 13(b)]. It is enough to say, that
like all exceptions from a general rule, those
in [Article 13(b)] must be construed in their
context so as to fulfil their function as a
departure from the general rule but one that
does not destroy or undermine the ordinary
attainment of that rule. The Full Court was
right to recognise the exceptional character of
the derogation from the general rule of return
afforded by [Article 13(b)]. The overseas
authorities to which the Full Court pointed
confirmed this approach.”
047 For our purposes we are not sure how profitable it is
subject any differences of view in the High Court to minute
analysis. We would agree that no serious question of
construction of Article 13(b) is involved and that it is to
be given the meaning its words require. All that may be
true, but every word has shades of meaning and the true
colour of the word is given by the context. The context
here is of an exception, restrictively phrased (“grave”,
“intolerable”), to the general rule of prompt return.
“Grave” may have its dictionary meaning yet how grave is
grave? When the Convention was drafted “grave” was
substituted for “substantial”. In the United States, as
explained in Friedrich v Friedrich, the United States
Department of State issued an instruction that:-
“The person opposing the child’s return must
show that the risk to the child is grave, not
merely serious.”
In Re A (A Minor) (Abduction) [1988] 1 FLR 365, 372 Nourse
L.J. said that:-
“… not only must the risk be a weighty one,
but it must be one of substantial, not trivial,
psychological harm.”
48. It seems to us, therefore, that deciding whether the
proven facts fall one side of the line or another is a
difficult problem of application where the court is entitled
to look for some help in concluding where matters fall.
Matters have to be shown to be really serious (running the
risk of substituting other words for “grave”) before the
exception can be enlivened. There are two justifications
for that approach. The first is to say that the civil
standard of proof on a balance of probabilities can be
raised a notch commensurate with the gravity of the
allegation to be proved: compare In re H (Minors) (Sexual
Abuse: Standard of Proof) [1996] AC 563. Secondly the
hurdle is high in order that the dominant purpose of prompt
return be not frustrated. Support for that view is to be
found in the Explanatory Report by Elisa Perez-Vera on the
Convention. She says in paragraph 34 with our emphasis
added:-
“To conclude our consideration of the problems
with which this paragraph deals, it would seem
necessary to underline the fact that the three
types of exception [in Articles 13 and 20] to
the rule concerning the return of the child
must be applied only so far as they go and no
further. This implies above all that they are
to be interpreted in a restrictive fashion if
the Convention is not to become a dead letter.
In fact the Convention as a whole rests upon
the unanimous rejection of this phenomenon of
illegal child removals and upon the conviction
that the best way to combat them at an
international level is to refuse to grant them
legal recognition. The practical application
of this principle requires that the signatory
States be convinced that they belong, despite
their differences, to the same legal community
within which the authorities of each State
acknowledge that the authorities of one of them
– those of the child’s habitual residence – are
in principle best placed to decide upon
questions of custody and access. As a result,
a systematic invocation of the said exceptions,
substituting the forum chosen by the abductor
for that of the child’s residence, would lead
to the collapse of the whole structure of the
Convention by depriving it of the spirit of
mutual confidence which is its inspiration.”
49. It seems to us to follow that even though the return
of the child may seem to be contrary to her welfare, the
court must steel itself against too freely allowing this
exceptional defence and the defendant must be put to strict
proof. With that introduction, we turn to the facts.
The Judgment of Hogg J.
50. The first question is whether we should extend time
and give permission to appeal. The delay in bringing this
appeal is short. The reason for the delay is wholly
understandable. The mother was girding her loins to return
when, on 27th March 2002, the first night of Passover, 27
people were killed in a suicide bombing in a hotel in the
coastal city of Netanya. It was a cataclysmic event. It
led to the Israeli tanks rolling into the West Bank and to
the crisis which has filled our newspapers and television
screens since then. It was enough to give this mother cause
for renewed anxiety. We bear all the factors listed in CPR
Part 3.9 and the overriding objective in mind and we have no
difficulty in concluding that it is appropriate to extend
time to appeal against the decision of Hogg J. For reasons
which will become apparent, there are arguable grounds for
appealing and we grant permission to appeal against her
order.
51. The approach of this court must be to review her
judgment made in the light of the facts as they were before
her. If our conclusion is that her judgment must be upheld,
we are then bound to look at the material before us to ask
whether that makes a difference.
As to her judgment on the grave risk of physical harm.
52. Mr Charles Howard Q.C., who did not appear in the
court below, makes two preliminary submissions. The first
is that the judge was wrong to return this child to a
country which was always treating itself as a country in a
state of war. He takes that fact from publicised comment by
the Israeli authorities. For example on 7th March 2002 the
Times reported Mr Sharon’s spokesman as saying, “We are in
the middle of a war”. Four days later the Chief General
Staff Lt.-Gen. Shaul Mofaz was reported in the Jerusalem
Post as repeatedly calling the campaign a war, instead of
combat as he had often said in previous meetings. He is
reported as saying:-
“This is not a war of choice. This is a war of
attrition. And contrary to the previous wars,
it is on our doorsteps everywhere.”
53. Mr Howard then submits that the judgments of the
United States Court of Appeals in Friedrich and of Hale L.J.
in TB v JB establish a principle that a state of war
justifies not returning the child to her homeland.
54. In our judgment it is not as simple as that. We may
since 11th September have become used to the rhetoric of a
war on terrorism. Whether Israel is truly in a state of war
may equally be a matter of semantic debate. All of that
misses the point. The issue is not whether there is a state
of war in Israel but whether there is a grave risk of harm
to this child if she is to be returned there. If conditions
of war do exist then the risk of harm is amplified. What is
actually happening on the ground determines the extent of
the risk, not the label which is given to that prevailing
state of affairs.
55. The second submission is that because Article 13(b)
gives the court limited powers to protect the child from
harm, the welfare of the child is thereby engaged so as to
require the court to address the question from the viewpoint
of a “protective parent without the motives of an abductor”.
He supports that submission by reference to paragraph 29 of
the Explanatory Report by Eliza Perez-Vera to the effect
that:-
“… Paragraphs 1(b) and 2 of the said Article
13 contain exceptions which clearly derive from
a consideration of the interests of the child.”
He also refers to paragraph 41 of the judgment of the
majority in the High Court of Australia in DP v Commonwealth
Central Authority where it was held:-
“What must be established is clearly
identified: that there is a grave risk that
the return of the child would expose the child
to certain types of harm or otherwise place the
child in “an intolerable situation”. That
requires some prediction, based on the
evidence, of what may happen if the child is
returned. In a case where the person opposing
return raises the exception, a court cannot
avoid making that prediction by repeating that
it is not for the courts of the country to
which or in which a child has been removed or
retained to enquire into the best interests of
the child. The exception requires the court to
make the kind of enquiry and prediction that
will inevitably involve some consideration of
the interests of the child.”
56. We have no difficulty in agreeing with those views.
Of course the interests of the child are engaged but the
consideration of those interests is either specifically
whether there is a grave risk of physical or psychological
harm or more generally whether the return would place the
child in an intolerable situation. The task of the court is
the standard task of finding the relevant facts and making
the necessary value judgment. Because protection of a child
is at issue, the court will inevitably be concerned and
vigilant to ensure that protection is afforded where it is
appropriate to do so. This delicate process of adjudication
will not, in our judgment, be aided by the incantation of a
mantra that the court is to approach the matter as a
protective parent without the motives of an abductor, or of
any other rubric apart from the words of Article 13(b)
itself.
57. Mr Howard is, however, perhaps on firmer ground in
some respects in his criticisms of the judge’s approach and
her analysis of the material before her. He makes a number
of points.
58. First he draws attention to this passage:-
“For generations, throughout time, certainly
since the end of the Second World War, the area
has been subject to problems [and dangers].
There have been wars and acts of terrorism.
Yet, with this knowledge, both the parents
chose to make their lives and their home
there.”
Mr Howard submits that in choosing to refer to that history,
the judge was both unfair to the mother and, moreover, set
the scene in a way which made it difficult for her to accept
the scale of the dramatic changes in recent times. When the
mother moved to Israel in 1994, there were only four bomb
attacks throughout the whole year. When the child was born,
the intifada had not yet begun. Since September 2001 nearly
500 Israelis and over 1,500 Palestinians have died in the
conflict. The position then and now is incomparable. We
see some force in this submission but it does not carry
great weight overall because the judge was clearly mindful
of the obvious worsening in the situation after the mother’s
departure from Israel and expressly said so. She had full
regard to all the material placed before her including both
the views of the Foreign Office who assessed the risk of
terrorist bomb attacks in Israel and the Occupied
Territories, to be “very high during the present crisis in
the Middle East peace process”. She also had regard to the
view of the Consul General to the Embassy of Israel that the
six million citizens and other residents lead normal daily
lives and that the current situation presented no
justification for preventing return to Israel of the child,
an Israeli citizen, to her country.
59. Secondly Mr Howard submits that the judge erred in
holding that the family home was not within the specified
areas of particular danger and the mother could return to
that area or indeed to the former matrimonial home. Mr
Howard submits that the Convention operates by way of return
to a country, not to a specific place. He also correctly
observes that some at least of the attacks have occurred
within a reasonable distance of their home and that
residents of that area have been killed or injured going
about their business elsewhere in Israel. As to the former
point, Mr Howard is correct, but so was the judge in holding
that it lay within the mother’s power and it was accordingly
her duty to take reasonable steps to keep her daughter as
free from harm as was reasonably possible. Although the
terrorist attacks are random and indiscriminate and no-one
can be guaranteed to be safe anywhere in Israel, the larger
towns and the public places and public transport are most
prone to be targets and to some extent they can be avoided.
As to the latter point, the family home is in as safe an
area as one can expect in these uncertain times.
60. Thirdly Mr Howard criticises the judge’s observations
that:-
“Life continues in Israel. The services and
infrastructure remain.”
We agree that those observations offer little help to the
essential question whether there is a risk of harm to this
child. We do not, however, regard the criticism as one of
great weight.
61. Fourthly Mr Howard makes a similar complaint about
the judge’s observation that “there is no organised State
evacuation or mass exodus”. He submits again that that
signifies nothing. Once more we see some force in his
criticism. For many in Israel there is no option but to
remain and for many, no doubt, there always will be an
overwhelming desire to remain. After all, the source of the
conflict is the aspiration of both peoples to be there. The
comment does not assist in assessing the degree of risk to
this child. It does not even bear much upon the question
whether it would return her to an intolerable situation.
The fact that many do tolerate what is happening may be a
factor to take into account but it is not determinative of
the quite separate question which this court has to ask
itself, namely, whether this court judges the situation to
be objectively intolerable.
62. Fifthly Mr Howard submits that for the judge to
observe that “there is no direct threat to [the child] or
her parents” is not to the point as the horror of the
present attacks is their indiscriminate nature. Save,
perhaps, for the assassination of the Israeli Cabinet
Minister, few of the attacks seem to be directed at
individuals. The judge did, however, recognise that the
threat was “one of a general risk of harm, being caught up
in an unpredictable attack, being in the wrong place at the
wrong time”.
63. Finally Mr Howard submits that the judge erred in
taking into account the “interesting document” produced by
the father which showed that the death rate from road
traffic accidents exceeded the death rates caused by acts of
terrorism. We agree that little weight should be attached
to such a comparison. Whilst it is obvious that even the
most careful driver can become involved in a road traffic
accident due to a want of care from another road user, there
is no reason to doubt that this mother is likely to drive
her beloved daughter with special care. On the other hand,
although she will be equally on guard against terrorist
attacks, her vigilance may not be enough to steer her away
from that source of danger. The statistical information is,
moreover, affected by the assiduous efforts by the
authorities to thwart the number of attacks and so reduce
their devastating consequences. We find this comparison
between road accident fatalities and terrorist fatalities
unhelpful. The father clearly thinks that he has made an
impressive point; we rather think it is something of an own
goal. If the road traffic risks are as high as the
terrorist risks, then cumulatively the risks to the child
are all the greater. The argument has a complete air of
unreality about it. The risk of harm upon which the mother
relies and with which the court is concerned is the risk of
harm arising out of the conflict. There clearly is some
risk. The court must evaluate whether that risk is one
which can be said to be grave.
Conclusions on the judge’s evaluation of the risk.
64. She clearly took all relevant information into
account. She correctly asked herself what was the actual
risk to this child of returning to Israel. She correctly
asked whether the risk fell within the tests established by
this court. She took account of the worsening situation.
She recognised that “there must be anxieties and
uncertainties in everyone’s mind who live in [Israel]”, but
she concluded that “the risk of direct harm befalling [the
child] as a result of acts of terrorism is not as great as
the mother would wish me to believe”. On the evidence
before her that was a conclusion to which she was entitled
to come. After a careful review of that evidence we are not
persuaded that she was wrong – indeed we would have come to
the same conclusion myself. Unless the fresh evidence
compels a different conclusion the mother has, in our
judgment, failed to establish any ground for upsetting that
part of the judgment.
As to Hogg J.’s judgment on the mother’s psychological
frailty and the “linkage” argument.
65. The mother’s submission is that the learned judge
failed to give sufficient weight to her evidence as to her
personal anxieties and fears and to the medical and
psychological evidence relating to the pressures that would
be placed upon her in accompanying the child back to Israel
with the consequent risk of harm to the child if that were
to happen. The real complaint is that the judge’s hands
were tied by Bracewell J.’s order so that she could not
consider all the material as she ought to have been able to
do. Notwithstanding Bracewell J.’s order and the
understanding of counsel that the mother was not entitled to
run the defence that she would be unable properly to care
for the child, Mr Scott-Manderson, appearing on her behalf
in the court below, did indicate in his skeleton argument,
but not by way of any formal application, that he wished to
rely on the consultant psychiatrist’s report and the letter
from the counsellor to support her case that she was not in
a fit state to endure the obvious pressures of accompanying
the child back to Israel and remaining in Israel with her.
Hogg J. allowed a further report from the counsellor dated
8th March 2002 to be admitted de bene esse. We refer back
to paragraph 17 where we set out her judgment. Mr Howard
complains that the judge failed to take all of the relevant
evidence into account, and especially failed to have regard
to the psychiatrist’s report. She appeared to fail to have
regard to material parts of the counsellor’s report, for
example:-
“If the court ordered [the mother] to return to
Israel then she would be without support as
most of her friends have left the country. If
she did return to Jerusalem, her anxiety is
such that she would not leave the house and in
my opinion it would be detrimental to the
attachment process for the child to be kept
indoors with an anxious mother. … however if
[the mother] plummeted into a depression this
would have a negative affect on her daughter’s
wellbeing.”
Although the judge did have regard to the progress made in
the counselling sessions, she failed to note that the mother
followed the news of the political situation in Israel
closely and the continued reports of killings, especially of
civilians, caused her further stress. The judge also failed
to refer to the addendum which noted the mother’s being
unable to sleep, having flashbacks of the bombing incidents
that took place while she was in Israel, and being haunted
by a photograph of a dead child’s shoe left on the pavement
after a recent incident. The conclusion was that the mother
would not be able to function and that in turn would have a
detrimental affect on her daughter. Mr Howard complains
that the judge misunderstood the thrust of the mother’s case
as it was set out in the skeleton argument and wrongly
concentrated on her inability properly to conduct the likely
litigation in Israel.
66. Once again there is considerable force in Mr Howard’s
submissions. The judge’s focus was narrow. She did not
appear to link the mother’s psychological difficulties to
her ability properly to care for her child nor to take this
into overall account when looking at the case in the round
and as a whole and asking whether it would amount to
returning the child to an intolerable situation. The
problem with Mr Howard’s submission is, however, the one he
recognises, namely that the judge’s hands were tied by
Bracewell J.’s order. Although there is no respondent’s
notice, we consider that the father might well have had real
grounds for cross-appealing if Hogg J. had engaged in the
full review of all the medical evidence which Mr
Scott-Manderson would have wished her to undertake. That
would have been tantamount to ignoring Bracewell J.’s
ruling. We doubt if it lay within Hogg J.’s power to set
Bracewell J.’s order aside. There may be some power to vary
interlocutory orders and directions for trial but usually
only if there has been some change of circumstance.
Ordinarily we would expect that only the Court of Appeal
could have interfered with Bracewell J.’s order which in
effect struck out part of the defence. Hogg J. very
understandably and sensibly had some, albeit incomplete,
look at the new material de bene esse and it would, in our
judgment, be quite wrong to criticise her for failing to do
that which Bracewell J. had held should not be done at that
final hearing.
67. On this aspect of her judgment we would likewise be
disposed, subject to what follows, to dismiss the appeal
against Hogg J.’s order.
The application for permission to appeal out of time against
the order of Bracewell J. of 4th February 2002.
68. We begin with the application to extend the time for
the appeal. The matter is governed by CPR 3.9 which we have
already set out. We have regard to all the circumstances of
the case and especially to the fact that this is an appeal
where the interests of the child are engaged. Even though
her welfare is not a paramount consideration, the question
of whether or not she runs a grave risk of harm is
sufficiently compelling for her interests to weigh heavily
in the scales. The court will be slow to sacrifice her
protection for a slavish adherence to time limits.
69. That may be our starting point for this particular
case but we must also have regard to the listed factors in
CPR 3.9. The interests of the administration of justice
demand not only regard for the interests of the child but
also regard for the fact that this is an International
Treaty obligation which we must honour, respecting the
predominant objective of the prompt return of children for
their future to be decided by the courts of their habitual
residence. Undue delay defeats that purpose.
70. This application to extend time has not been made
promptly. The time for appeal is 14 days. The application
is made nearly 9 weeks out of time. The philosophy
underpinning CPR Part 3 is that the rules are there to be
obeyed.
71. The failure to comply with rules was intentional in
that a deliberate decision must have been taken not to seek
permission to appeal this order. Even when the appeal was
mounted against Hogg J.’s order, there was originally no
application to appeal Bracewell J.’s order. That decision
was taken after some prompting by Hale L.J. when we granted
a stay of execution of the order.
72. There is no good explanation for the failure. We can
understand why it happened. The mother, being compliant to
the practice of the Family Division to move these matters
quickly to a final hearing, accepted Bracewell J.’s ruling
and concentrated on the gravity of the risk of harm.
Perhaps the mother hoped to persuade the trial judge to
consider the matters again, as Hogg J. did. That was, in
our view, a misconceived expectation. Thereafter the order
made by Hogg J. became the primary focus of the appellant’s
attention.
73. So far as we are aware the applicant has complied
with the other rules, practice directions and court orders.
74. We assume that the failure to comply was caused by
the legal representatives, rather than the mother herself.
They were tactical decisions taken in the course of the
litigation. Although the applicant is bound by the acts of
her representatives, one has more sympathy if she is not
herself at fault.
75. The failure to comply with the time limit has had no
significant effect on the father. He was relieved of having
to meet one defence the mother wished to raise and his life
was made the easier as a result. He had no added burden of
worry because the mother was appealing Hogg J.’s judgment in
any event.
76. The effect which the failure to comply has had on the
mother could be much more serious because the result of that
failure is that she lost the right to apply for permission
to appeal and the child will have to return unless she
obtains an extension of time. We have already indicated our
preliminary view that her appeal against Hogg J.’s order is
likely to fail unless fresh evidence requires us to come to
a different conclusion. Appealing Bracewell J.’s order may
be her last hope. It is, therefore, necessary to evaluate
the merits of this proposed appeal. The test is whether the
appeal would have a real prospect of success. In our
judgment there is an arguable appeal on the ground that the
judge did not give adequate reasons for her conclusion that
the mother had not raised a prima facie defence in relation
to her psychological problem. The judgment merely recites
the test to be applied but does not explain why no case is
made out. If she was asserting in line with the President’s
observation that the defence failed as a matter of law
rather than as a matter of fact, then we would respectfully
differ for the reasons we set out earlier. This was not
self-induced anxiety. If, which appears to us to be more
likely, Bracewell J. was holding that the evidence was so
weak as to have no reasonable prospect of establishing the
defence, then arguably she erred in striking it out and in
not leaving it to the trial judge since, as we shall show,
the psychiatrist was clear in his opinion that:-
“…The precipitating cause was the security
situation in Israel, and that contributory
factors included the birth of her child, the
deterioration of her marital situation, and her
increasing sense of isolation.”
77. So arguably causation is established. Since he also
expressed the view that she would suffer “a massive
reinforcement of her anxiety symptoms and avoidant
behaviour” and that that would have “a significantly
detrimental effect” on both her mental health and the proper
upbringing of her child, the basis of the defence is
arguably established. Arguably the judge was wrong to
conclude no prima facie defence was made out. Whether the
case was strong enough to make a difference is a matter to
which we will return later but for present purposes and for
the exercise of this discretion we conclude that if time is
extended, then permission to appeal would be granted. For
reasons we will later explain, we also have to conclude that
eventually the appeal would be more likely to fail on the
merits than to succeed.
78. Finally, the effect of granting the extension of time
and of allowing the appeal would be to cause very
substantial delay to a case which has already taken more
time than usual in this field of work. If the mother’s
original application were to be granted in full, she would
wish to call both the psychiatrist and her counsellor to
give oral evidence and each of them would need to provide
up-to-date reports. The father would then seek permission
to have his own psychiatrist examine the mother and then to
give evidence. That examination could take more time. The
time for hearing would be substantially increased. The
state of listing in the Family Division is such that no
early date could be given. The child could well be in this
country for over a year before matters are finally resolved.
That is an unacceptable prospect given that time is of the
essence in these applications.
79. Our conclusion is that the overwhelming weight of
those factors compels us to dismiss the mother’s application
for an extension of time and accordingly dismiss her
application for permission to appeal against Bracewell J.’s
order. In reaching that conclusion we are satisfied that no
injustice is done to the mother or to the child for we are
satisfied that this appeal does not have sufficient
prospects of success on the merits to allow it to proceed.
Does the fresh evidence justify our allowing the appeal
against Hogg J.’s order?
First: the risk of physical harm.
80. Despite being “devastated” by the order that the
child should return to Israel, the mother made the necessary
travel arrangements to fly with her parents to stay in Tel
Aviv until such time as she could find suitable
accommodation. Tension in Israel was mounting during March.
There were apparently 129 victims of Palestinian violence in
March. The culminating atrocity was the bomb which killed
27 people and injured many more in Netanya in the midst of
the Passover supper. The Israeli response was to mount
Operation Defensive Shield, surround Yassir Arafat’s
compound in Ramallah, move into Nablus and Jenin and keep a
number of wanted Palestinians under siege in Bethlehem. The
world watched and waited anxiously. In her affidavit sworn
on 15th April the mother said she was:-
“fraught with dread and fear for the safety of
[my daughter] and myself … I have tried to
convince myself it is possible to keep safe by
taking personal security measures and avoiding
certain places. I am unable to believe that is
the case. Since the making of the order the
situation in Israel has changed dramatically.
Israel is now, to all intents and purposes, at
war. I am paralysed with fear at the very
thought of going to Israel with [my daughter].
… I do not believe I could summon sufficient
resolve to board the flight. [The child] has
always been in my primary care. She is wholly
dependent upon me for her care and security”.
81. We can well understand her fear and anxiety. Any
reasonable parent would be troubled. On March 29th a
suicide bomb attack on a supermarket in West Jerusalem
killed 2 Israelis; on March 31st a suicide bomb attack on a
Haifa restaurant killed 16; on April 10th a suicide bomb
attack on a bus near Haifa killed 7 passengers and injured
20; and on April 12th a suicide bomb attack killed 5 near a
crowded Jerusalem market and injured 50 others. On 25th
April days before the hearing before us Operation Defensive
Shield ended and the Israeli tanks withdrew from the West
Bank. For a while it almost seemed that the suicide
bombings had ended. That was not to be. We cannot ignore
the fact that since the hearing before us 15 were killed and
60 injured in a suicide bomb attack on a snooker club near
Haifa on 7th May. 3 were killed and 50 injured in a market
in Netanya on May 19th. 2 more were killed and 27 injured
in a repeat attack near the snooker club on May 22nd. On
May 27th an elderly woman and a 2 year old girl were killed
and 50 wounded in a suicide bombing outside a shopping
centre north-east of Tel Aviv. As we write this part of the
judgment The Times tells us that a car bomb exploded next to
a bus at Megiddo (the site of Armageddon) killing at least
16 people and injuring nearly 40. As we prepare this
judgment to hand it down, we read that on 18th June at least
19 Israelis, many teenagers, were killed in or near a bus in
Jerusalem. Mr Howard painted the change dramatically. He
pointed out that between 17th October 2001 and 14th March
2002 there were 60 incidents, approximately 3 per week.
Between 14th March and 22nd April there were 36 incidents, 1
per day. A table in The Times on 19th June 2002 showed
that since the start of the second intifada in September
2000 there were 9 fatal suicide bombings (including those
where only the bomber was killed) up to the end of August
when the mother left Israel; there were 9 more to the date
of Hogg J.’s judment; another 5 in the short time before the
mother was expected to return; and 10 more to 20th June.
Yassir Arafat has, at least in recent days, condemned these
bombings but the fact is they have happened and the only
sensible conclusion for this court to draw is that such
horrors will continue to happen.
82. Mr Howard invited comparison between the official
assessments of the situation before and after the hearing.
The travel advice issued by the Australian government for
Wednesday, 13th March, noted that “the escalation in
Israeli-Palestinian violence has increased the already high
risk of terrorist attacks against civilian targets
throughout Israel especially in population centres such as
Tel Aviv and Jerusalem”. Australians then considering
travel to Israel were advised carefully to review their
plans. By contrast on 4th April the advice was to defer all
travel to Israel because “all population centres in Israel
are at a very high risk of terrorist attack at the present
time”. On 11th March the Canadian Department of Foreign
Affairs was advising its citizens to consider deferring
tourist travel to Israel whereas on 4th April the advice was
to defer all tourist travel to Israel. Mr Howard submits
the opinions of the Australian and Canadian authorities are
objective and compelling evidence of the deterioration.
The Department of State warned U.S. citizens on January 3rd
to defer travel to Israel because the potential for further
terrorist attacks remained high but their concern appears to
have been directed more at the West Bank and Gaza. By 2nd
April the situation in Jerusalem was causing concern. Our
Foreign Office described the risk of unpredictable and
indiscriminate bomb attacks as being very high and the same
assessment was given on 11th April.
83. Mr Setright Q.C. for the father invites us to have
regard to a letter dated 25th April from the Israeli Embassy
repeating the view placed before Hogg J. that the citizens
and residents are leading normal lives and going about their
daily business. For our part we view that with a little
scepticism. Life in Israel at the moment is anything but
normal.
84. Normality is not the touchstone. The question is
whether there is a grave risk of harm to this child. The
court’s approach is similar to that which engaged the House
of Lords in a very different question in Davies v Taylor
[1974] A.C. 207 where Lord Reid said at p. 213:-
“You can prove that a past event happened, but
you cannot prove that a future event will
happen and I do not think that the law is so
foolish as to suppose that you can. All that
you can do is evaluate the chance. Sometimes
it is virtually 100%: sometimes virtually nil.
But often it is somewhere in between.”
It is trite to say that in this case it is “somewhere in
between”. It is a matter of judgment whether the risk of
harm is sufficiently high to constitute a grave risk.
85. Among the many factors we take into account after
anxious scrutiny of all of the material before the judge and
before us are these. The attacks are likely to continue.
They are random and indiscriminate. No-one is absolutely
safe. The state cannot provide absolute protection. We are
not dealing with the kind of harm which the court has power
to control. The father cannot control it. The mother has a
limited ability by restricting her freedom of movement to
avoid obvious places of danger and she will no doubt do so.
Her agoraphobia may lead her to be reclusive which may cause
harm of a different kind being suffered by the child and we
consider that in a moment. The Passover bombing changed the
perceptions of many and fully justified the mother’s
concern. When the matter first came before this court on
15th April those concerns were mounting and at that point in
time the mother’s case was at its highest. Since then the
frequency of attack may have diminished, perhaps only
slightly. The Palestinian authorities profess to be making
some attempts to control the suicide bombers but the dangers
have not been eliminated. The position is hardly stable.
At the conclusion of the hearing before us on 29th April we
were satisfied that there was less risk for this child than
a fortnight earlier when we granted the stay. There was
less risk even, or certainly no more risk, to the child then
than on the date Hogg J. made her order. It is obvious that
there is and was a real, as opposed to speculative or
fanciful, risk of harm but, if we ask, “What is the actual
risk of harm to this particular child?”, we do not judge
that risk to be unacceptably high for Convention purposes.
We recognise it is unacceptably high to the mother and we
are sympathetic to her personal predicament. We do not
ignore the risk: indeed it is troublesome; but in our
judgment it is not a grave risk of harm. There is,
therefore, no reason to allow the appeal on the basis of the
fresh evidence.
Secondly: the risk of psychological harm.
86. In her affidavit the mother raises again her own
anxieties and her concern that her ability to care for the
child will be impaired if she is compelled to return to
Israel. She supports that assertion by producing a further
letter from her counsellor dated 24th April 2002. That
states that she saw the mother a few days after 4th April
when she [the mother] decided she could not return to
Israel. The report states:-
“She was experiencing severe symptoms of panic
disorder, with frequent panic attacks, constant
crying and sleeplessness. The political
situation had escalated with further attacks on
civilians and suicide bombings. The imminent
threat of returning to a country where there
were continual bombings filled her with fear
especially for the safety of her daughter.
I saw [the mother] again on 16th April 2002
following the court hearing. She continued to
be acutely aware of the serious political
situation in Israel but now that she had been
granted leave to appeal (sic) her mental
condition had greatly improved. She had not
experienced any further panic attacks and was
able to focus on the day to day caring of her
daughter. Understandably she was showing some
signs of anxiety re the outcome of the pending
appeal but it is clear that a return to Israel
will bring massive reinforcements of her
anxiety symptoms and will impede her ability to
care for her daughter.”
87. The question is whether there is sufficient evidence
to suggest that her impaired ability constitutes a grave
risk for the child.
88. In assessing that risk, we look back to the material
that was before the court in March. In her affidavits she
told how in July 2001 she was upstairs in a department store
in Jerusalem when a bomb went off downstairs. The child was
with her. She was shaking with fear, could not stop crying
that night and for many nights following could not sleep.
Shortly after that a massive bomb went off in the centre of
Jerusalem at a pizza restaurant which they were used to
frequenting. She was “paralysed with fear” and became “a
prisoner in our home”. She said she had become afraid of
driving and if she drove at all and a car driven by an Arab
pulled alongside she would start shaking and crying. On
another occasion she drove to Jerusalem with the child to a
place near the Arab quarter and had to wait for her husband
for nearly an hour. She said she was frantic with worry and
was shaking for fear that she and the child would be
attacked. She did not say that she sought medical advice.
There is nothing internally inconsistent with her account
and we would be inclined to accept it, though guarding
against some possible exaggeration. In the exchanges which
passed between the parties after she had left Israel there
are some references to her fear but it is fair comment to
say that the main thrust both of her affidavits and of that
correspondence is her explaining the reasons for her
unhappiness in her failing marriage. The father has a more
fatalistic view about the chances of being involved in a
terrorist attack believing, says the mother, that “when your
time’s up, your time’s up”.
89. Doctor M., the consultant psychiatrist, reported on
15th November 2001. He diagnosed her to be suffering from a
panic disorder with agoraphobia. We have already quoted
passages from his report. He also said:-
“… It is clear that the original stressor was
a fear of being involved in a terrorist act,
this fear was precipitated by the perceived
vulnerability of her child. The environment in
which she continued to live, both in the
marital situation and the general living
environment, contributed to a perpetuation and
accentuation of that fear response.”
He expressed the view that:-
“… a forced return to Israel would lead to a
massive reinforcement of her anxiety symptoms
and avoidant behaviour. It would have a
significantly detrimental effect on both her
mental state and the proper upbringing of her
child. Her continued experience of extreme
anxiety and panic would in my view have a
long-term detrimental effect on [her] capacity
to engage in routine activities with her child,
such as bringing her to public places to play
or in escorting her to a nursery school.”
90. That diagnostic report is of greater cogency than the
letters from the counsellor who was offering
psychotherapeutic treatment. The counsellor did however
confirm the diagnosis, the cause and the consequence. In an
addendum to her report dated 21st February she said on 8th
March:-
“I do not consider that she would be able to
function and this in turn would have a
detrimental effect on her daughter. [The
child] would not meet other toddlers as is the
case at present, but far more serious would be
the emotional affect of [the mother’s] anxiety
on her child’s development.”
91. We bear these observations fully in mind. We are
prepared to accept that the mother does suffer as has been
described and that the situation in Israel is worrying
enough to her for that suffering to be exacerbated if she
returns. There is, however, no evidence before the court
which would suggest that she is not likely to receive
satisfactory medical attention there though we accept that
she will need more treatment in Israel than in this country.
The question is whether the child is at grave risk of harm
from the breakdown in the mother’s health. She has not
satisfied us that the child will suffer to that extent. The
matter will be reviewed by the Israeli court and full
account will be taken, we have no doubt, of the difficulties
she is there experiencing. We emphasise that we are not
deciding this question with the welfare of the child our
paramount consideration. We have to suppress the views we
might hold were that the question we have to resolve. We
are, however, clear that an Article 13(b) defence is not
made out on that ground. That is why we took the view that
an appeal against Bracewell J.’s order would eventually
fail.
Thirdly: is the situation in Israel intolerable for the
child?
92. We turn to consider finally whether or not, looking
at the matter in the round, we are persuaded that the return
of this child to Israel would be a return to an intolerable
situation. We are satisfied the mother will find it
intolerable but that is not the test. The question is
whether, having regard to the purpose of the Convention, the
limited exception with which we are dealing and the
international obligations that arise under it, this court
can be satisfied that the scale of violence and the mother’s
reaction to it have produced a situation which this young
child should not be required to endure. The word
“intolerable” is so strong that by its very meaning and
connotation it sets the hurdle high. We are not satisfied
that the very real and worrying problems which will confront
mother and daughter in Israel do produce a situation which
can be said to be intolerable.
Conclusions.
93. This is the judgment of the court. We have borne in
mind a number of comparable decisions provided by the
Israeli Central Authority of cases in different
jurisdictions and at different times when children have been
returned to Israel. The circumstances of those cases were
different and although they are of interest, they do not
affect our judgment. The mother has produced a recent
decision of the United States District Court of Minnesota
where the Article 13(b) defence did succeed although we are
informed that the matter is under appeal. We have read that
case with equal interest and respect. Nothing in the
voluminous papers has persuaded us that the fresh evidence
placed before the court should lead us to allow the mother’s
appeal. We therefore dismiss her application to extend time
for appeal and for permission to appeal against the order of
Bracewell J. We also dismiss her appeal against the order
of Hogg J. Counsel will be able to address the court on the
suitable arrangements to be made for the return of the child
to Israel and we hope that there will be a measure of
agreement about this.