TF v PJ

Under rule 4.1(6) of the Family Procedure Rules 2010, the High Court may vary or revoke a final substantive order made by a judge of equivalent jurisdiction. The power extends across family proceedings, including proceedings under the 1980 Hague Convention.

The power does not permit previous orders to be revisited at will. The applicant must establish a recognised basis, including non-disclosure or a significant change of circumstances, and the court must exercise the power judicially in accordance with the overriding objective. Expert evidence showing a serious deterioration in a parent's mental health, combined with a material change in the proposed arrangements for the child, may satisfy that threshold.

A return order had been made under the 1980 Hague Convention, as incorporated by the Child Abduction and Custody Act 1985, requiring a young child to return to Italy. The Court of Appeal dismissed the mother's appeal.

The mother subsequently applied to the High Court to revoke the return order. She relied principally on a jointly instructed psychiatrist's evidence that she had suffered a serious deterioration in her mental health. She also relied on changes to the proposed care arrangements, including the father's new position that the child should be separated from her.

The court had to decide whether a High Court judge could revoke a final order made by another judge of equivalent jurisdiction and, if so, whether a sufficiently material change of circumstances had occurred.

1. The application was granted and the return order was set aside. Rule 4.1(6) of the Family Procedure Rules 2010 empowered the High Court to vary or revoke a final substantive order made by a judge of equivalent jurisdiction. The power was not confined to procedural or case-management orders.

2. The Supreme Court's reasoning in Re L and B (Children) [2013] UKSC 8 was applicable across family proceedings. It was not confined to care proceedings. The identical language used in the civil and family procedural rules should be applied consistently. Within family law, the power extended to financial remedies, private and public children proceedings, and proceedings under the 1980 Hague Convention.

3. The power did not create a free-standing opportunity to revisit previous orders. It had to be exercised judicially and in accordance with the overriding objective. The relevant grounds identified by the authorities included non-disclosure and a significant change of circumstances. A qualifying change therefore constituted a threshold requirement for revocation.

4. The jointly instructed psychiatrist's report went far beyond the limited mental-health evidence previously available. It diagnosed a genuine and severe anxiety disorder with panic and associated depression. The return order and fear of returning to Italy had triggered a significant deterioration. A return was likely to produce a further crisis, and separation from the child created a real concern about further deterioration and attempted suicide. This represented a sea change in the relevant evidence and, by itself, amounted to a material change of circumstances.

5. The other developments also amounted to material changes. Of particular importance was the father's new proposal that the child should be separated from his mother, contrary to his previous position. The fact that further expert evidence might have been obtained for the earlier appeal did not deprive the evidence of relevance once it had been produced for an application under rule 4.1(6).

1. High Court (Family Division): The court granted the mother's application under rule 4.1(6) of the Family Procedure Rules 2010 and set aside the return order made on 29 November 2013.
2. Court of Appeal: Sullivan, McFarlane and Lewison LJJ dismissed the mother's appeal against the return order on 26 February 2014.
3. High Court (Family Division): Alison Russell QC ordered the child's return to Italy under the 1980 Hague Convention on 29 November 2013.