Y (Children)

Permission for further expert evidence is available only where the evidence is necessary to resolve the proceedings justly. A party seeking to reopen a final order must provide evidence of sufficient moment or significance to justify a substantial reconsideration; the court is not required to embark upon that process on inadequate material.

Under Article 13(b) of the Hague Convention, the relevant intolerability is that of the children. The unavailability of a preferable arrangement, under which a parent accompanies the children on return, does not itself establish an intolerable situation. There must be evidence that the alternative return arrangement creates a sufficiently grave risk of harm or intolerability for the children.

The children had been wrongfully removed from Ontario, Canada, by their mother. Following a five-day Hague Convention hearing, HHJ Rogers ordered their return to Canada. The mother had advanced Article 13(b) and children’s-objections exceptions, but the judge rejected them. Her case at that hearing had proceeded on the basis that she would return with the children.

After the final order was sealed, the mother applied under Part 18 of the Family Procedure Rules 2010 to set it aside and sought a further joint psychiatric report. She relied on an asserted deterioration in her mental health. On 15 February 2018, the judge refused both requests, removed conditions from the original order, and provided for the father to repatriate the children if the mother did not do so within a specified period.

The mother appealed the refusal to reopen the proceedings, to permit further expert evidence, and to investigate whether return without her engaged Article 13(b).

Appeal dismissed. McFarlane LJ gave the judgment, with which Gross and Coulson LJJ agreed.

1. The judge was entitled to refuse permission for a further psychiatric expert. Under Children and Families Act 2014, section 13(6), expert evidence must be necessary to assist the court to resolve the proceedings justly. The earlier five-day hearing had included oral evidence from two experts. The new report identified the same diagnosis and was based principally on one episode after the sealed order. There was no cogent material showing that a further expert would provide a necessary new insight.

2. The refusal of further evidence disposed of the complaint that the judge should not have assessed the existing evidence at the first hearing of the set-aside application. At that stage, the court was entitled to decide whether the material filed was sufficiently significant to justify reopening a final decision. The judge applied that approach. He did not determine the application finally on the footing that the mother had to prove her case in full.

3. The judge was also entitled to conclude that the existing medical material did not disclose a prima facie basis for reopening the Hague proceedings. His scepticism about the timing and weight of the asserted deterioration was open to him, particularly in light of his familiarity with the earlier evidence and findings.

4. The mother’s proposed Article 13(b) case concerning return without her lacked evidential support. The question of intolerability concerns the children, although their relationship with each parent remains relevant to their lives. A return accompanied by the mother may have been preferable, but its unavailability did not make return with the father intolerable. There was no evidence that the children would suffer an adverse effect of the gravity required by Article 13(b), and the mother had not advanced that case at the original hearing.

5. The order for return to Canada therefore remained effective. A further period was to be allowed for the mother to return with the children before the father could make the return arrangements himself.

• Court of Appeal (Civil Division): The mother’s appeal was dismissed in [2018] EWCA Civ 1208.
• High Court, Family Division (HHJ Rogers): On 8 September 2017, the judge ordered the children’s return to Canada under the Hague Convention. On 15 February 2018, he refused the mother’s application to set aside that order and for further expert evidence, and varied the return arrangements. No lower-court citation was stated in the judgment.