W (A Child)

Factual and Procedural Background

The father appealed an order made on 30th April 2018 by Judge Bromilow, sitting as a Deputy High Court Judge, which set aside a previous order from 30th November 2017 made under The Hague Child Abduction Convention 1980 ("the 1980 Convention"). The original order required the mother to return the parties' child ("B") to Spain by 28th December 2017. The order was set aside due to a significant deterioration in the mother's mental health, described as a "sea-change" since the initial order. Directions were given for a rehearing of the father's application.

The mother is British and the father is Spanish. They separated in early 2014 after a relationship in Spain. Following separation, a Spanish court-approved agreement provided for B to live with the mother and have regular contact with the father. The mother wrongfully removed B to England on 12th October 2016. The father commenced proceedings under the 1980 Convention in England on 27th July 2017, with the first effective hearing on 11th September 2017. The mother opposed return based on Article 13(b) of the Convention, citing grave risk due to her mental health and B's objections.

The final hearing on the initial application took place on 14th and 15th November 2017. The judge ordered the return of B to Spain by 28th December 2017, with B to remain in the mother’s care. Subsequently, the mother applied to set aside this order on 11th December 2017 due to a marked deterioration in her mental health. The judge permitted further psychiatric evidence and scheduled a rehearing for March 2018, which was considered a significant delay. The judge ultimately found a substantial change in the mother's mental health and set aside the return order to allow rehearing.

Legal Issues Presented

1. Whether the High Court has jurisdiction or power to set aside a final order made under the 1980 Hague Child Abduction Convention when there is an alleged fundamental change of circumstances.
2. The interpretation and application of section 17 of the Senior Courts Act 1981 concerning the power to set aside final orders.
3. The appropriateness of rehearing procedures and the court’s power under Family Procedure Rules 2010, particularly rule 4.1(6), in relation to final orders under the 1980 Convention.

Arguments of the Parties

Appellant's Arguments

• Section 17 of the Senior Courts Act 1981 prevents or limits the High Court's power to set aside a final order, reserving such applications to the Court of Appeal.
• Precedent supports that the only proper challenge to a final order under the 1980 Convention is by appeal, not by setting aside.
• The decision in In re F (2014) was wrongly decided, particularly regarding the application of rule 4.1(6) of the Family Procedure Rules 2010 and section 17 of the 1981 Act.
• The mother’s argument that these proceedings are analogous to child welfare cases, where the court has broader powers, is incorrect because 1980 Convention proceedings are distinct.
• The practical advantages claimed for a set-aside jurisdiction are illusory; such power risks undermining finality, lacks clear evidential thresholds, and could cause delays.
• A change in circumstances should be addressed by staying enforcement of the order rather than setting it aside.

Respondent's Arguments

• The interests of children are paramount in proceedings under the 1980 Convention, justifying a power to set aside return orders in appropriate circumstances.
• The High Court should have the power to set aside orders to further the overriding objective and reduce delay, as the Court of Appeal is not practical or expedient for such matters.
• The trial judge is better placed to determine whether a change in circumstances justifies a rehearing, including whether to permit the application to proceed.
• Additional evidence in this case was only obtained following the lower court’s direction, supporting the need for a rehearing before the same court rather than appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the appeal raised a significant legal question about the High Court's jurisdiction to set aside final orders under the 1980 Convention, a question previously noted but not decided by appellate courts. However, the court declined to decide this issue in this case for pragmatic reasons: the appellant effectively accepted the need for rehearing given the changed circumstances, and the case had become urgent with delays already unacceptable.

The court analysed the competing arguments, particularly focusing on the effect of section 17 of the Senior Courts Act 1981, which generally requires applications to set aside final orders to be heard by the Court of Appeal. The appellant argued this barred the High Court from setting aside final orders under the 1980 Convention. The court noted that the Family Procedure Rules 2010, rule 4.1(6), which allows the court to vary or revoke orders made under the rules, likely does not extend to final orders made under the Child Abduction and Custody Act 1985.

Despite these hurdles, the court provisionally concluded that the High Court does have an inherent jurisdiction to review and set aside final orders under the 1980 Convention when there is a fundamental change of circumstances that undermines the basis of the original order. This conclusion was supported by family law precedents where courts have set aside or ordered rehearings in children proceedings and financial remedy cases, even though these powers may appear to conflict with section 17. The court emphasized that such power should be exercised sparingly and with a high threshold to avoid undermining the finality of orders.

The court observed practical advantages to allowing the judge who made the original order to determine whether a rehearing is justified, rather than requiring parties to apply to the Court of Appeal. This approach would better serve the interests of children and allow for more efficient case management. The court rejected the appellant’s submission that changed circumstances should only be addressed by staying enforcement, finding that a substantive order is more appropriate.

The court also noted the need for expeditious determination of such applications to comply with the overriding obligation to avoid delay in 1980 Convention cases.

Holding and Implications

The court DISMISSED the father's appeal.

The consequence of this decision is that the father's application under the 1980 Convention will proceed to rehearing as a matter of urgency, implementing the directions given by the lower court. The court did not set a binding precedent on the jurisdictional issue but expressed a provisional view that the High Court possesses an inherent jurisdiction to set aside final orders under the 1980 Convention in cases of fundamental change of circumstances. The court invited the Family Procedure Rule Committee to consider why orders made in the Family Division are not included within the scope of section 31F(6) of the Matrimonial and Family Proceedings Act 1984, indicating potential procedural reform.

No new precedent was formally established by this decision; rather, the court took a pragmatic approach to ensure the case could proceed without further delay.