BL v TC & Anor

When a party seeks to withdraw an application under the 1980 Hague Convention, the court must apply the overriding objective in the FPR 2010. An agreed child-arrangements order remains subject to the court’s independent welfare jurisdiction. The court must consider the order and its welfare consequences, although the extent to which it must examine the merits depends on the circumstances. A variation of a financial order under section 25 of the Matrimonial Causes Act 1973 must be just and appropriate. The judgment also expressed the provisional view that expressly confidential mediation in Hague Convention proceedings may be protected from disclosure, subject to recognised exceptions including significant risk of harm to a child.

The applicant mother sought the return of her 14-year-old daughter to the United States under the 1980 Hague Convention. The father sought orders under the inherent jurisdiction securing the child’s life in England. Following negotiations, the parties agreed that the child should live with her father in London, with arrangements for contact with her mother. The mother withdrew the Hague application, and the court was asked to approve welfare orders and vary a 2011 financial order to reflect the child’s changed living arrangements. The judge was not required to determine the Hague or inherent-jurisdiction applications on their merits. The central issues were whether the agreed orders should be approved and whether the applications and financial variation satisfied the applicable legal tests.

1. The Hague Convention application was permitted to be withdrawn. Applying Ciccone v Ritchie (No. 2) [2016] EWHC 616; [2017] 1 FLR 812, the court applied the overriding objective in rules 1.1 and 1.2 of the FPR 2010.
2. The agreed child-arrangements orders were approved. The court’s paramount welfare jurisdiction was engaged, and the court retained an independent obligation to scrutinise the agreement and the proposed orders. Consistently with Re H (A Child) (International Abduction: Asylum and Welfare) [2016] EWCA Civ 988; [2017] 2 FLR 527, the extent to which the court must examine the merits depends on the circumstances. The orders were considered to promote the child’s welfare, although the judge described the outcome as the least worst outcome and the best that could be salvaged from the situation.
3. The variation of the financial remedy order was approved as just and appropriate, applying the test in section 25 of the Matrimonial Causes Act 1973.
4. The judge was not required to determine the legal issues concerning disclosure of confidential mediation communications. However, he expressed a strong provisional view that, in the particular context of 1980 Hague Convention proceedings, mediation conducted under express confidentiality terms might be immune from disclosure in all circumstances save those identified in Re D (Minors) (Conciliation: Privilege) [1993] 1 FLR 932, namely where disclosure might be justified by a risk of significant harm to a child. He considered that the exceptions in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 would not necessarily apply.

The agreed orders were endorsed. The family’s future arrangements were left in place, with no determination of the withdrawn Hague application on its merits.