ST v QR

The High Court may set aside its own return order where there has been a fundamental change of circumstances undermining the order’s foundation. The threshold is deliberately high, but it is not an unattainable statutory test. The court must assess the totality of the old and new evidence and decide, on the balance of probabilities, whether the original foundations no longer exist or are insufficiently secure. If that threshold is met, the court must redetermine the substantive Hague Convention application. The assessment is factual and must be active and holistic. A change which merely makes compliance more difficult, without undermining the basis of the original order, is insufficient.

The mother applied under Part 18 of the Family Procedure Rules 2010 to set aside an order requiring the summary return of her six-year-old child to South Africa under the Hague Convention 1980. The order had followed findings that the child had been wrongfully retained and that the mother had not established the Article 13(1)(b) exception. After the order, she took an excessive quantity of prescribed medication and relied on her deteriorating mental health, the claimed loss of support from her brother, and a later referral for suspected breast cancer. The central issues were whether these matters amounted to a fundamental change of circumstances and, if so, whether the substantive return application should be redetermined.

1. Application dismissed. The order of 8 February 2022 remained in full force and effect. The child’s continuing retention in the United Kingdom was wrongful and had to end forthwith.
2. The court applied the structured four-stage approach identified in Re W [2018] EWCA Civ 1904, Re B (A Child: Abduction: Article 13(b)) [2020] EWCA Civ 1057 and Re A [2021] EWCA Civ 94. At stage two, limb (c), the applicant had to prove on the balance of probabilities a fundamental change of circumstances undermining the basis of the original order. It was not necessary at that stage to prove the Article 13(b) exception itself.
3. The phrase “fundamental change” was not a separate statutory test. It required the court to ask whether the decision’s foundation had been swept away, so that the decision could no longer stand. The court had to assess the totality of the evidence existing at the original hearing and thereafter. If the threshold were met, the court would have to redetermine the substantive application, whether or not the eventual decision was the same.
4. The court rejected the asserted breakdown between the mother and her brother. The evidence was inconsistent with earlier contemporaneous communications and with the case previously advanced. The court also preferred the joint expert psychiatrist’s evidence. The medication incident was not accepted as an attempted suicide, subsequent self-harm had not occurred, and any short-term deterioration on return was expected to decline as the mother adjusted to life in South Africa.
5. The new evidence, including the suspected breast-cancer referral, did not materially alter the previous assessment. The mother had accommodation and financial, medical and therapeutic protective measures available. The court therefore found no fundamental change in circumstances and did not need to redetermine the substantive application. In any event, on the existing and new evidence, neither grave risk nor an intolerable situation under Article 13(1)(b) had been proved.

First-instance decision. The judgment records that the court had previously ordered the child’s summary return on 8 February 2022 in Re CC (a child: Article 13(b), Hague Convention 1980) [2022] EWHC 743 (Fam). The present application to set aside that order was dismissed.