A (A Child) (1980 Hague Convention: Set Aside)

A Hague Convention return order may be set aside for new information only where the high threshold of a fundamental change of circumstances is met. The change must undermine the basis of the original order. Courts must prevent attempts to reargue or frustrate an earlier determination.

A child’s objection must be evaluated for strength, maturity and authenticity, including the influence of the abducting parent. The child’s view is neither determinative nor presumptively decisive. Convention policy, international comity, expedition and the child’s welfare remain relevant to the discretion.

Joinder of a child to a Convention appeal will be rare where the child’s views and interests are already effectively presented through skilled welfare evidence and the parties’ submissions.

The father sought the summary return to Italy of his 12-year-old child under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. A deputy High Court judge initially ordered the child’s return. After the mother asserted that the child had developed an objection, another deputy High Court judge set aside that order and dismissed the return application.

The father appealed. The child also applied to be joined as a party to the appeal. The central issues were whether the later evidence established a fundamental change of circumstances sufficient to reopen and set aside the return order, how the asserted objection should be evaluated, and whether joinder was necessary or desirable.

1. Appeal allowed. The later evidence did not cross the high threshold required to set aside a Hague Convention return order. The mother’s application was an attempt to reargue a case that had already been determined. The circumstances were some distance from a fundamental change undermining the basis of the original order.

2. The structured process identified in Re B requires the court to decide whether reconsideration should be permitted, what further evidence is required, whether the existing order should be set aside and, only then, how the substantive application should be redetermined. Those stages may sometimes be addressed at one hearing, but expedition does not reduce the substantive threshold.

3. The child’s later statements remained ambivalent and were made after he had been placed under considerable emotional pressure. Properly balanced, they did not amount to an objection to return or, at least, were not expressed in an autonomous and authentic voice. Even if they just amounted to an objection, they were not strongly held. The Convention exception requires both an objection by the child and sufficient age and maturity. The resulting discretion must consider the nature, strength and authenticity of the objection, together with Convention policy and the child’s welfare.

4. The child’s views were neither determinative nor presumptively decisive. International comity, confidence between contracting states, expedition and determination of welfare issues in the state of habitual residence weighed firmly in favour of return.

5. The application to join the child to the appeal was refused. His wishes and feelings had been fully and skilfully conveyed through the CAFCASS reports. Joinder would intensify the parental conflict and risk presenting instructions affected by emotional pressure rather than the child’s authentic voice.

6. An order was made for the child’s return to Italy. Asplin LJ and Moylan LJ agreed with Hayden J.

1. Court of Appeal (Civil Division): By [2021] EWCA Civ 194, allowed the father’s appeal, refused the child’s joinder application and ordered the child’s return to Italy.
2. High Court, Family Division: On 20 November 2020, Mr Leslie Samuels QC, sitting as a deputy High Court judge, set aside the return order and dismissed the father’s application for summary return.
3. High Court, Family Division: On 29 September 2020, Ms Deidre Fottrell QC, sitting as a deputy High Court judge, ordered the child’s summary return to Italy.