B (Children), Re

The Court of Appeal may revisit an order for the return of children under the Hague Convention when dealing with its implementation. That power is residual and exceptional. It extends to a substantial change of circumstances making enforcement impracticable or implementation impossible, but ordinarily concerns practical arrangements. An abducting parent cannot determine the children’s return simply by refusing to return or asserting that the return would worsen their mental health. Only an exceptional case of genuine impossibility can justify that result. Convention proceedings and arrangements for return should be dealt with swiftly, since delay may increase distress and jeopardise implementation.

Three children were wrongfully removed from New Zealand to England by their mother. The father applied under the Hague Convention. Singer J held that the Convention had been breached but accepted the mother’s defence under Article 13(b). On 19 December 2000, a differently constituted Court of Appeal, by a majority, held that the stringent Article 13(b) test was not met and ordered the children’s return to New Zealand.

The mother later relied on worsening depression and asserted that she was psychologically unable to return. She asked this court to set aside the earlier order or to hold that its implementation had become impracticable. The central issue was whether the subsequent evidence established an exceptional change of circumstances preventing enforcement of the return order.

1. Application dismissed. The Court of Appeal unanimously held that its residual jurisdiction to revisit an order for return extended to enforcement or implementation. It could address practical arrangements and, exceptionally, a change of circumstances making enforcement impracticable or implementation impossible.
2. The mother’s deteriorating emotional condition did not meet that threshold. The evidence showed genuine distress, but it did not establish an exceptional inability to return. Her refusal to return could not, by itself, dictate that the children should remain in England. As stated in Re C [1989] 1 FLR 403, allowing an abducting parent to achieve that result would undermine the Convention.
3. The court had to implement the earlier return decision rather than determine the children’s long-term welfare, custody or access arrangements. Those matters fell principally to the courts of the children’s habitual residence. The children’s practical care in New Zealand could be arranged temporarily, including through their grandparents, if the mother did not accompany them.
4. The President emphasised that the mother’s conduct had created the children’s predicament and that the children should return together. Thorpe LJ agreed, stressing that the application sought to reverse a recent, carefully considered appellate order and that Convention proceedings should generally meet the six-week target. Waller LJ agreed that the mother’s decision not to return was voluntary and that no post-order event had made enforcement impracticable.
5. The earlier order for the children’s return to New Zealand was therefore to be implemented forthwith. The application was dismissed.

• Court of Appeal (Civil Division): On 19 December 2000, a differently constituted court allowed the father’s Hague Convention application in substance and ordered the three children’s return to New Zealand, reversing Singer J’s decision under Article 13(b).
• Court of Appeal (Civil Division): The present court dismissed the mother’s application to set aside or avoid implementation of the earlier return order.