Re W (A Child)

An application to reopen a final return or non-return order under the Hague Child Abduction Convention is likely to be rare. Moylan LJ provisionally considered that the High Court has inherent jurisdiction to do so where a fundamental change of circumstances sufficiently undermines the basis of the original decision and requires reconsideration.

The application must be made without delay and managed tightly. Only an application with a sufficient prospect of success should proceed, within parameters fixed by the court. Moylan LJ also provisionally considered that rule 4.1(6) of the Family Procedure Rules 2010 does not itself confer the power. The court did not finally determine the jurisdictional issue because the appeal had become academic, had not been fully argued and further delay would have been unacceptable.

A father obtained a final order under the Hague Child Abduction Convention 1980 requiring the mother to return their child to Spain. The order contemplated that the child would remain in the mother’s care. After the hearing, the mother’s mental health deteriorated dramatically. The Deputy High Court Judge set aside the return order under rule 4.1(6) of the Family Procedure Rules 2010 and directed a rehearing.

The father appealed, contending that the High Court lacked power to set aside a final Convention order. By the end of the appeal hearing, he accepted that the substantive application had to be reheard and that an out-of-time appeal by the mother would produce the same result. The practical outcome was therefore no longer disputed. The remaining question was whether the High Court itself had jurisdiction to reopen the final order.

1. Appeal dismissed. The practical outcome would be a rehearing whether the appeal was allowed or dismissed. The father accepted that, if successful, he could not oppose permission for the mother to appeal out of time, and the new psychiatric evidence would probably lead to the original order being set aside. The jurisdictional issue had not been fully argued, further consideration of section 17 of the Senior Courts Act 1981 was required, and additional delay in these child-abduction proceedings would have been unacceptable. The court therefore declined to determine the issue conclusively and directed an urgent rehearing: [2]–[6], [35], [68].

2. Proceedings under the Convention carry a heavy obligation of expedition. Any application to reopen an order must be determined considerably faster than occurred here: [16], [41].

3. Obiter and provisional: Moylan LJ considered that the High Court has inherent jurisdiction to review and set aside a final Convention return or non-return order. The proposed threshold is a fundamental change of circumstances which sufficiently undermines the basis of the original decision and requires reconsideration. This high threshold prevents a party relying on an ordinary change of mind or other insufficient development: [37], [66].

4. The trial judge is generally better placed than the Court of Appeal to assess whether the asserted change justifies reconsideration and, if so, whether the case requires a full rehearing or a more limited review. A stay of the original order may be inadequate and potentially inconsistent with the structure of article 11(6)–(8) of BIIa: [38]–[40].

5. Obiter and provisional: rule 4.1(6) of the Family Procedure Rules 2010 did not appear to confer the necessary power. It concerns case-management orders made under the Rules, whereas a final Convention order is made under the Child Abduction and Custody Act 1985: [46]–[49]. Section 17 of the Senior Courts Act 1981 required fuller examination, although Moylan LJ’s preliminary view was that it has limited application to family proceedings: [50]–[62].

6. Reopening will be rare. An application must be filed without delay and tightly managed so that only cases with a sufficient prospect of success proceed, within court-defined limits: [67].

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 1904, dismissed the father’s appeal because it had become academic in practical terms and directed that his Convention application be reheard urgently.

2. High Court, Family Division: HHJ Bromilow, sitting as a Deputy High Court Judge, set aside his previous final return order after finding a fundamental deterioration in the mother’s mental health, and directed a rehearing. No citation is stated.

3. High Court, Family Division: HHJ Bromilow had previously ordered the mother to return the child to Spain after rejecting the defences under article 13(b) and the child’s objections. No citation is stated.