F (Children), Re

Proceeding on the accepted basis that the High Court may, in an appropriate case, set aside a return order under the 1980 Hague Convention, the court held that the relevant question is whether circumstances since the original order have changed with such significance that a different decision might reasonably have been reached. Changes may be assessed cumulatively, although earlier decisions must receive great weight. Serious, supported evidence of a child’s deteriorating mental state can amount to such a change and may justify departing from the usual policy of prompt return. The existence and precise nature of the power were left undecided, but its practical desirability was recognised. Hague proceedings must be handled urgently because delay can intensify welfare risks and entrench family conflict.

After the mother brought three Hungarian children to England, the father sought their return under the 1980 Hague Convention. Return orders were made in February 2016. An earlier appeal was dismissed in Re F (Children) [2016] EWCA Civ 546, and a subsequent application to set aside the orders was refused by Mostyn J.

Following further non-compliance, medical evidence concerning the eldest child’s anxiety and suicidal thoughts was obtained. Mr Cohen QC set aside the return orders, finding a significant cumulative change of circumstances. The father appealed, challenging the weight given to the evidence, the earlier decisions and Convention policy, and the treatment of sibling separation under Article 13(b). The central issue was whether the judge had applied the correct test and was entitled to reach his conclusion.

1. Disposition. The appeal was dismissed. Lady Justice Black gave the judgment, with Lord Justice McFarlane and the President of the Family Division agreeing.
2. Applicable test. The court proceeded on the agreed basis that an application to set aside a return order required a change of circumstances of such significance that the court might reasonably have reached a different conclusion at the original hearing. This was the formulation identified in TF v PJ [2014] EWHC 1780 Fam, reported as Re F (A Child)(Return Order: Power to Revoke) [2015] 1 WLR 4375.
3. Relevant period. The judge was right to examine the whole period since the February return orders, rather than only the period since the later refusal of revocation. Earlier decisions, including decisions upheld on appeal, required great weight. However, separate changes which were individually insufficient could be considered cumulatively.
4. Application. The judge carefully considered Convention policy, the previous decisions, the family’s Hungarian connections, the rarity of revocation, the father’s proposed voluntary return and the need for caution about the child’s statements. He was nevertheless entitled to accept that the medical evidence accurately reflected the child’s genuine mental state and that her condition was not merely more of the same. The serious risk of self-harm, the mother’s inability to return without her and the intolerable consequences for the younger children justified the conclusion that there had been a significant change. The challenge concerning sibling separation did not establish any error in the application of the agreed law.
5. Power and wider guidance. The court declined to determine definitively whether the High Court possesses, or precisely how it possesses, a power to set aside a Hague return order. It recognised that such a power is plainly desirable and would rarely be used, noting the practical disadvantages of requiring every application to be made to the Court of Appeal, as discussed in Walley v Walley [2005] EWCA Civ 910. The father’s return application was to be reheard, supported by an independent psychiatric assessment. The court also stressed the need for expedition under Article 11 of the 1980 Hague Convention and Article 11(3) of Brussels IIA, since delay can increase the harm caused by wrongful removal and imposed return.

1. Court of Appeal (Civil Division): On 7 December 2016, the father’s appeal against the order of Mr Cohen QC was dismissed.
2. High Court, Family Division: On 14 September 2016, Mr Cohen QC set aside the February 2016 return orders and directed a rehearing of the father’s return application.
3. Court of Appeal (Civil Division): On 9 June 2016, an earlier appeal against the February return orders was dismissed in Re F (Children) [2016] EWCA Civ 546; the children were ordered to return to Hungary.
4. High Court, Family Division: Mr Francis QC made the return orders in February 2016. Mostyn J refused a later application to set them aside on 1 August 2016.