SA v FA (setting aside consent order on ground of duress)

A family court may set aside an order obtained by duress, but this is a strong and exceptional remedy requiring utmost care. Ordinary pressure associated with family litigation is insufficient. At minimum, the pressure must be deliberately imposed by the other party and illegitimate. Duress must have operated on the applicant’s mind so as to overbear free will. Relevant considerations include the credibility and seriousness of the threat, its illegitimacy, its continuing coercive force, and whether the applicant had any realistic means of obtaining protection. Where the order would not have been made but for the duress, the court may exercise its discretion to set it aside and revive the proceedings.

The mother commenced proceedings in August 2016 seeking orders concerning her two sons, who had been taken by their father to Kurdistan. Interim orders required the children’s return and restricted the father’s ability to leave England and Wales. The father left the jurisdiction and did not return the children.

On 13 September 2016, the mother appeared in person and consented to dismissal of the proceedings. She later alleged that the father had repeatedly threatened to remove the children to an unknown location if she continued the proceedings. She applied to set aside the dismissal order on the ground that her consent had been obtained under duress.

1. Application granted. The order made on 13 September 2016 was set aside. The proceedings commenced on 18 August 2016 were revived and immediately reinstated.
2. The court held that family court orders may be set aside where they are tainted by or obtained as a result of duress, as they may be where they are tainted by fraud. The remedy is strong and exceptional and must be exercised with the utmost circumspection and care. Pressure alone is insufficient. As a minimum, the pressure must have been deliberately imposed by the other party and must be illegitimate.
3. Duress requires the pressure to operate on the victim’s mind so as to destroy free will. The threats made to the mother were found to be credible, powerful and plainly illegitimate. Their coercive force continued because she had no realistic means of protecting the children from removal to an unknown location. The father’s previous breaches of court orders demonstrated both his determination and his ability to act on the threats.
4. The mother’s apparent confirmation before the dismissing judge that she was acting freely did not disprove duress. In the circumstances, her ability to maintain that position despite questioning demonstrated the strength of the coercion. The dismissing judge had been misled about the true reason for the mother’s consent and would not have dismissed the proceedings had the true facts been known.
5. The court declined to receive oral evidence from the father by telephone. Although remote communication may assist engagement with a party abroad, telephone or video evidence was considered potentially unreliable when credibility was disputed. The father had been given repeated opportunities and clear assurances to attend personally, but refused to do so.

No appeal or appellate decision is stated in the judgment.