C (A Child)

A consent order should not be set aside without proof of the alleged duress or undue influence. Where the allegation concerns pressure by the party’s own legal adviser, the adviser must receive the detailed case against him and have a proper opportunity to respond. Legal professional privilege must be waived to the extent necessary, and oral evidence will ordinarily be required unless the allegation is conceded. The approach in Tibbles to varying or revoking court orders cannot automatically be applied to consent orders. The appeal was allowed because the judge set aside the order without completing that investigation.

The Turkish father applied for the summary return of the child under the Hague Abduction Convention of 1980. The mother relied only on the Article 13(1)(b) exception. She consented to a return order subject to protective undertakings by the father, but later alleged domestic violence, rape and duress by her own counsel, Mr A. Her Honour Judge Baron set aside the consent order under the route identified in Rule 4.1(6) of the Family Procedure Rules 2010, finding that the consent was not fully informed, and listed a fresh contested hearing. The father appealed, contending that the allegation had not been properly investigated.

1. Appeal allowed. The mother could not obtain release from the consent order unless she established the case on which she relied. The judge could not properly find that case made out without giving full consideration to Mr A’s response to the detailed allegations about his conduct. The matter was therefore remitted for investigation.
2. It was fundamentally necessary for Mr A to see the mother’s developing written case in full. An informal account of the allegations was insufficient, particularly because the allegations were serious and could expose his professional conduct to criticism. The hearing below had not been procedurally capable of determining the issue fairly.
3. Leveson LJ added that, where a party alleges that her will was overborne by undue influence from her legal adviser, legal professional privilege must be waived so that the adviser can answer the allegation and the other party can challenge it. Oral evidence will ordinarily be required unless undue influence is conceded.
4. Longmore and Leveson LJJ cautioned against applying the approach in Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] 1 WLR 2591 and Arif v Zar & Anor [2012] EWCA Civ 986 to consent orders without further analysis. A consent order may be more sacrosanct than an order made after a contested hearing. A change of circumstances short of frustration will not ordinarily justify setting aside an agreement, although proved duress or undue influence may do so.
5. The discussion of L v L [2008] 1 FLR 226 indicated that bad legal advice alone, or pressure falling short of undue influence, may not justify setting aside a consent order. That principle did not resolve the distinct allegation of duress in this case, although a high threshold was necessary to protect finality and robust legal advice.
6. The remitted investigation was to be attempted on 28 January 2013. Mr A was to receive the mother’s four statements immediately and, if necessary, seek release from other professional commitments so that he could give evidence.

1. Court of Appeal (Civil Division): granted permission and allowed the appeal on 24 January 2013, remitting the issue of whether the consent order should be set aside for proper investigation.
2. Principal Registry, Family Division: Her Honour Judge Baron set aside the consent return order on 13 December 2012 and fixed a fresh contested hearing of the return application and the Article 13(1)(b) exception.