CS & Anor v PD

An order for the summary return of children under the Hague Convention may be set aside where there has been a subsequent and sufficient change in circumstances. In this case, the court did not determine that issue because the fathers accepted, following further psychiatric evidence, that returning the children to America would probably cause severe harm to the mother and indirectly to the children. The return order was therefore set aside by consent, and the fathers’ Hague Convention applications were withdrawn.

The proceedings concerned the wrongful removal of two children from America to England by their mother. The children had different fathers, both of whom applied under the Hague Convention for their summary return.

Mrs Justice Roberts had ordered the return of both children, concluding that the mother’s psychiatric condition did not establish a grave risk of psychological harm to the children under Article 13. Before the children returned, the mother alleged a serious further deterioration in her mental health. Mr Justice Mostyn directed a psychiatric assessment and recognised that a return order could be set aside after a subsequent and sufficient change in circumstances.

After receiving the consultant psychiatrist’s report, both fathers accepted that their respective child should not return to live in America. The issues before the court were resolved by consent.

1. Disposition. The mother’s applications to set aside the orders for the summary return of both children to America were granted by consent. Each father’s application for permission to withdraw his Hague Convention application was also granted.
2. The court received a consultant psychiatrist’s report stating that the mother had suffered severe psychiatric ill-health as a subjective reaction to the return decision and that her condition would probably deteriorate further if the children returned to America. Both fathers accepted that the effect on the mother, and indirectly on the children, would likely be severe and harmful.
3. The judgment recorded, without deciding the issue, that an order for immediate return under the Hague Convention may be set aside following a subsequent and sufficient change in circumstances. The court did not need to rule on the legal or evidential questions because the parties’ positions resolved the applications by consent.
4. As to future arrangements, no agreement was reached concerning contact between the elder child and her father. Any application concerning that child would require fresh proceedings. The mother and the younger child’s father reached substantial agreement concerning arrangements in England and Wales, although possible future travel to America and appropriate safeguards remained unresolved.

The judgment describes earlier first-instance proceedings rather than an appeal.

• High Court (Family Division): Mrs Justice Roberts ordered the summary return of both children to America: [2016] EWHC 2913 (Fam).
• High Court (Family Division): Mr Justice Mostyn subsequently declined immediate enforcement and directed psychiatric assessment, recognising that a return order could be set aside following a subsequent and sufficient change in circumstances. No citation for that judgment is stated.
• High Court (Family Division): The present court granted the mother’s applications by consent and permitted withdrawal of the fathers’ Hague Convention applications.