C v M & Anor (No 1 Hague Abduction: Application for Re-hearing)

A return order under the Hague Convention 1980 may be set aside without court error only in rare cases where new information produces a fundamental change in the circumstances or undermines the basis of the original order. The application is subject to a high threshold and must not become a re-argument of the concluded case.

The court should proceed in stages: decide whether reconsideration should be permitted, determine the scope of further evidence, decide whether to set aside the order, and, if necessary, redetermine the substantive application. A material change in a child’s objections, protection, distress, or participation may affect both a Convention defence and the discretionary balancing exercise. The assessment remains fact-specific.

The father obtained an order for the return of two children to Mauritius under the Hague Convention 1980. The order followed findings that the mother had removed the children from their habitual residence and that the child-objections and grave-risk defences had not prevented return, although the objections threshold had been narrowly crossed.

After the order was made, the older child, X, applied to be joined and sought to set it aside. Her application was supported by her mother and opposed by her father. New evidence addressed the strength and quality of X’s objections, her understanding of the order, her lack of confidence in the protective arrangements, and her subsequent distress. The central issue was whether that information fundamentally changed the basis on which the return order had been made.

1. Application granted. The return order concerning X was set aside. Since the father did not seek separation of the children, the order concerning Y was also set aside.
2. Family Procedure Rule 12.5(2)(a) and Practice Direction 12F, para 4.1(a), permit the court in rare circumstances to set aside its own return order where no court error is alleged but new information fundamentally changes the basis on which the order was made. The threshold is high. Evidence, rather than assertion, is required.
3. The court applied the four-stage process identified in Re B (A Child Abduction Article 13B) [2020] EWCA Civ 1057: whether to permit reconsideration; the extent of further evidence; whether to set aside the order; and, if set aside, redetermination of the substantive application.
4. The evidence established more than a variation of the material previously known. X’s objections were of a different quality and nature, her concerns about protection by the orders and by her parents were more clearly articulated, and there was new evidence of significant distress and increased support at school. The evidence also suggested that her initiative in seeking help had not been engineered by another person.
5. The change could affect not only the child-objections defence but also the assessment of grave risk, the protective measures, the involvement of the child in proceedings, and the court’s ultimate discretion. The court remained conscious of the Hague Convention’s summary nature, its policy against unilateral removal, and the need to prevent a return order becoming an instrument of harm.
6. The circumstances fell within the spectrum in which setting aside was justified. The substantive return application remained to be reconsidered, and the court expressly left open whether the eventual decision would be the same.