AB and CD (Children) (No 2) (1980 Hague Child Abduction Convention: Joinder; Set Aside), Re

In 1980 Hague Convention proceedings, a child’s joinder is governed by the child’s best interests. Party status is exceptional where the child’s views can be adequately conveyed through a Cafcass report or other existing arrangements. A child’s age, opposition to return and wish for autonomy do not, without more, require joinder.

A return order may be set aside without alleging court error only where new information, including a fundamental change in circumstances, sufficiently undermines the basis of the order so that the application requires rehearing. Distress, repeated failed handovers and continuing objections will not necessarily meet that high threshold where they were foreseeable in the context of the original decision.

The court had previously made a return order under the 1980 Hague Convention for two children wrongfully retained in England by their mother. The children had been living in Ireland with special guardians. The mother’s Convention applications had been rejected, and the return order had been upheld at the permission stage by the Court of Appeal.

Following several unsuccessful attempts to implement the order, the older child sought joinder and separate representation to pursue a set-aside application. The mother sought joinder for the younger child and applied to set aside the return order, relying on continuing opposition, distress during handovers, disputed conduct and perceived uncertainty concerning the Irish special guardianship order. The issues were whether joinder was in either child’s best interests and whether there had been a fundamental change requiring rehearing.

1. Applications refused. The applications by AB and the mother were refused. The return order remained in force and was to be implemented and, if necessary, enforced.
2. Under FPR 2010, rule 16.2, joinder depended on the child’s best interests. The circumstances in FPR 2010, PD16A, para 7.2 were non-exhaustive. AB’s standpoint could be represented by the mother; his views had already been adequately conveyed through the Cafcass report, social-worker evidence and judicial meetings; and his status as an older child opposing return had existed throughout the proceedings. Party status in Convention proceedings was exceptional.
3. Autonomy did not require a child to be brought into the litigation where the child’s voice had already been heard clearly. Joinder could prolong the child’s involvement, repeat arguments already rejected and create welfare risks. The same reasoning applied to CD. Joinder for enforcement was also refused because it would prolong AB’s involvement without serving his best interests.
4. The set-aside threshold was high. The court had to determine whether a fundamental change sufficiently undermined the basis of the earlier decision and order to require rehearing. The staged approach described in Re B involved deciding whether to permit reconsideration, determining the extent of further evidence, deciding whether to set aside and, only if appropriate, redetermining the substantive application.
5. The children’s views had not materially changed, although they had been expressed in more florid terms. Their distress and the failed handovers were regrettable but not wholly unexpected in light of the circumstances already known when the return order was made. Disputed conduct during handovers did not need to be resolved. The perceived jurisdictional difficulty concerning the Irish special guardianship order was a misunderstanding and did not undermine the order’s basis.
6. The court therefore found no fundamental change sufficient to require rehearing. A further meeting between AB and the judge was also refused because it was unlikely to serve his welfare.

• Court of Appeal: Permission to appeal against the original return order was refused on 24 December 2024. Permission to appeal against subsequent orders, including refusal to set aside, was refused on 31 January 2025.
• High Court (Family Division): The present applications for joinder, separate representation and set aside were refused. The return order remained to be implemented and, if necessary, enforced.