Re S. (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908

INCADAT legal file Hague parental abduction

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The child, a girl, was 13 months old at the date of the alleged wrongful removal. She was born in Israel and prior to the removal had always lived there. The mother was born in the United Kingdom and had been living in Israel since 1995. The father was born in Australia and moved to Israel in 1992. Both parents later became Israeli citizens. The parents were married and both had and were exercising rights of custody at the date of the removal on 28 August 2001.
On 15 October 2001 the father petitioned for the return of the child to Israel. The mother did not dispute that the removal had been wrongful, but sought to invoke Article 13(1)(b). She raised three arguments: (a) the child would be at risk of psychological and physical harm in Israel given the security situation there; (b) that she herself was at a grave risk of physical and psychological harm if she had to return to Israel and that this in turn would harm the child, of whom she was the primary carer; (c) the child would suffer grave harm without the day to day care of the defendant since the father would be unable to provide such primary care.
At a pre-trial hearing on 4 February 2002 a High Court judge ruled that the mother had not raised a prima facie defence in relation to her psychological problems and consequently could not pursue this ground at trial. The mother did not appeal this ruling. On 14 March 2002 the High Court ordered the child’s return, rejecting the alternative arguments under Article 13(1)(b).
Preparations were then made for the child’s return. However, on 4 April 2002, the mother applied for a stay of the return order pending an appeal of that order and of the preliminary order of 4 February. This stay was granted. The mother then had to apply not only for leave to appeal, but for leave to make such applications after the relevant time limits under English procedural rules had expired.
The Court of Appeal ruled that it was appropriate to extend the time limit to allow the mother to make an application to appeal against the return order of 14 March. The Court equally granted leave to appeal against that order. The Court of Appeal refused to extend the time limit to allow the mother to make an application to appeal against the preliminary order of 4 February.