N v J (Power to Set Aside Return Order)

A High Court judge may review and, where appropriate, set aside an interlocutory return order made under the inherent jurisdiction, even where no error by the original judge is alleged. The jurisdiction is grounded in the court’s continuing responsibility for the child’s welfare and may be exercised under FPR r 4.1(6).

The applicant must show a material change of circumstances or material non-disclosure relevant to the child’s welfare, such that setting aside the order accords with the child’s best interests. The discretion is constrained by finality, the need to prevent two attempts at the same issue and respect for the appellate process. Alleged unfairness or breach of article 6 concerns the original decision and is ordinarily a matter for appeal.

The mother applied within inherent-jurisdiction proceedings to set aside a return order made by Francis J requiring her to return two children from North Carolina to England and Wales. The order followed an earlier decision by Her Honour Judge Harris permitting the father to relocate the children to California. The mother remained in breach of both orders and had a pending application for permission to appeal the earlier relocation decision.

She relied on material non-disclosure, a change in circumstances, the children’s wishes, their integration in the United States, the father’s decision to remain in England and the alleged denial of representation at the return hearing. The central questions were whether the High Court had power to set aside the order and, if so, whether the statutory and procedural principles were satisfied.

1. Power to review. A return order made under the inherent jurisdiction is an interlocutory and injunctive order directed to securing the child’s return pending determination of substantive welfare issues. The High Court therefore retains jurisdiction to review and, where appropriate, set it aside in the absence of alleged judicial error, particularly where later circumstances affect the child’s welfare.
2. Procedural power. Although Senior Courts Act 1981, s 17(1) generally directs applications to set aside a judgment after trial to the Court of Appeal, a return order of this character does not necessarily follow a trial for that purpose. FPR r 4.1(6) gives the High Court power to vary or revoke the order. The rule is applicable because the order is interlocutory, and a first-instance court is better placed than the Court of Appeal to conduct any necessary fact-finding.
3. Principled limits. The power must be exercised judicially, not capriciously, and consistently with the overriding objective and the child’s welfare. The applicant must establish a change of circumstances or material non-disclosure relevant to the welfare evaluation and sufficient to justify setting aside the order as being in the child’s best interests. Finality, the avoidance of two bites at the cherry and the preservation of the appeal route impose a significant restraint.
4. Application. The children’s wishes, their schooling and integration in the United States, the father’s decision to remain in England and the pending permission application were all known, or substantially known, when the original return order was made. They therefore did not constitute a relevant change of circumstances. There was no material non-disclosure. The mother’s failure to participate by telephone did not establish non-disclosure because her arguments were before the original judge in writing.
5. The complaint that the original hearing was unfair and infringed article 6 concerned the manner in which the original order was made. It was properly a matter for the appellate jurisdiction. The application to set aside was dismissed.