Re D & Anor

In summary Hague Convention proceedings, an order for a child’s return may be set aside only where the applicant proves a fundamental change of circumstances on the balance of probabilities. The change must be of such order and magnitude that the basis of the original judgment has been swept away. The court must first decide whether that threshold is met before considering further evidence, setting aside the order or rehearing the substantive application. The assessment may be made holistically, by considering individual changes together and globally. The high threshold protects the summary nature of the Hague jurisdiction and prevents repeated attempts to relitigate the return decision.

The mother applied under FPR 2010, r 12.52A and PD12F, para 4.1A, to set aside an order requiring the return of her two daughters to the Republic of Ireland under the Hague Convention 1980. The return order had followed the court’s rejection of claimed exceptions based on the children’s objections and grave risk of harm or intolerability under Article 13.

She relied on alleged changes concerning accommodation, access to social or emergency housing, her mental health, and possible separation of the siblings and her younger children. The central issue was whether those matters amounted, individually or cumulatively, to a fundamental change undermining the basis of the original decision.

1. Application dismissed. The mother failed to prove any fundamental change of circumstances. The condition precedent to reconsideration was therefore not established.
2. The court applied the staged approach identified in Re B: first determine whether a fundamental change has occurred; if so, determine the extent of further evidence, whether the order should be set aside, and, if necessary, redetermine the substantive application. The factual change had to be proved on the balance of probabilities.
3. The threshold was deliberately high. The application was not an appeal and could not be used to argue that the original judgment was wrong. It was intended to prevent repeated litigation and preserve the policy and summary character of the Hague Convention jurisdiction.
4. No fundamental change was established regarding accommodation. The earlier evidence showed that the maternal grandfather could accommodate the family temporarily, and the later evidence did not displace that conclusion. The court also rejected the assertion that the mother and children would be left destitute or without access to emergency accommodation.
5. The evidence of deteriorating mental health did not establish a diagnosis, the nature or extent of any condition, or professional evidence that return would cause a material deterioration sufficient to engage Article 13(1)(b). The asserted deterioration substantially depended on the rejected housing premise.
6. No fundamental change was established regarding sibling separation or the children’s objections. The court found that the mother would not leave her two youngest children behind and could still return with all four children.
7. The court considered the matters both individually and holistically. Their combined effect remained far below the threshold. Return to the Republic of Ireland was to proceed, subject to submissions on timing.

• High Court (Family Division): the return order made on 30 June 2023 in [2023] EWHC 2128 (Fam) was not set aside.
• Court of Appeal: on 31 July 2023, Lord Justice Peter Jackson refused permission to appeal and refused a further stay, upholding the decision.