In re S (A Child) (Abduction: Custody Rights)

Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction is an exceptional defence to prompt return. A parent cannot rely on a self-created refusal to return or an unreasonable failure to protect the child. An externally caused psychiatric illness may nevertheless be legally capable of founding the defence. Physical and psychological harm must be considered separately, followed by an overall assessment of whether return would objectively be intolerable. The exception requires clear and compelling evidence of a grave and substantial risk. Welfare is not paramount. Political labels such as war do not determine the issue; actual conditions and the risk to the particular child do.

The mother wrongfully removed her infant daughter from Israel to the United Kingdom. She accepted that the child was habitually resident in Israel and that the father was exercising custody rights. She relied on Article 13(b), alleging risks arising from terrorist violence and from her own panic disorder and agoraphobia.

Bracewell J struck out the psychological-risk limb of the defence at a directions hearing. Hogg J later ordered the child’s return, rejecting the alleged risks. The mother sought extensions of time and permission to appeal against both orders and relied on fresh evidence concerning worsening violence. The central questions were whether her case was capable in law of engaging Article 13(b), how its separate limbs interacted, and whether the evidence established a grave risk or an intolerable situation.

The appeal against Hogg J’s order was dismissed. The application for an extension of time and permission to appeal against Bracewell J’s order was also dismissed.

1. Time limits are rules to be obeyed. An application for relief under the Civil Procedure Rules 1998 must be assessed under CPR 3.9, having regard to all the circumstances, the administration of justice, promptness, intentional default, explanation, compliance with other rules, responsibility for the default, effects on the parties, the merits, and the overriding objective. The importance of the child’s protection and the Convention’s treaty obligations did not justify the substantial delay in this case.
2. Permission to appeal requires a real, rather than fanciful, prospect of success or another compelling reason. An appeal is ordinarily a review, not a rehearing. The Court of Appeal should respect the expertise of Family Division judges and interfere with factual conclusions only where the decision was plainly wrong or affected by serious procedural irregularity.
3. Fresh evidence arising after the decision may be admitted where necessary. The appellate court should first decide whether the appeal succeeds on the material before the lower court and consider the fresh evidence only if the appeal would otherwise fail.
4. The mother’s case was capable in law of engaging Article 13(b). The rule against relying on a self-created psychological situation applied where an abducting parent refused to return or took an unreasonable stance. It did not automatically exclude an externally caused psychiatric illness which impaired the primary carer’s ability to care for the child.
5. The three risks in Article 13(b) are discrete but interlinked. Physical and psychological harm should be assessed separately, after which the court must stand back and consider the position in the round. The court must apply the statutory language, not a protective-parent rubric, and the child’s welfare is not the paramount consideration.
6. Article 13(b) sets a stringent and high threshold. Clear and compelling evidence of substantial, grave harm is required. A state-of-war label is not determinative; actual conditions on the ground determine the risk. Here the violence created a real risk, but not a grave risk of physical harm. The medical evidence established maternal anxiety, but not grave harm to the child from impaired care. The situation was objectively worrying, but not intolerable within Article 13(b).

The orders provided for the child’s return to Israel. There was no order for costs, save for funded-client detailed assessment, and counsel were directed to lodge an agreed minute of order.

1. Court of Appeal (Civil Division) dismissed the appeal against Hogg J’s return order and refused an extension of time and permission to appeal against Bracewell J’s earlier order: [2002] EWCA Civ 908.
2. High Court, Family Division — Hogg J ordered the child’s return to Israel following the final hearing.
3. High Court, Family Division — Bracewell J struck out the mother’s Article 13(b) case based on her psychological condition at the directions stage.