The Hungarian father applied under article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the 1980 Hague Convention”), incorporated into English law by the Child Abduction and Custody Act 1985, for the return to Hungary of his three children, L now aged 14, F now aged seven and G now aged four, whom the mother had brought to England without his consent in the summer of 2015. In February 2016 the judge granted the application and ordered the children’s return despite the objections of L and F. The appeals of the mother and L against the order were dismissed by the Court of Appeal in June 2016, who ordered the return of the children no later than 25 July. The children did not return as ordered, L having refused to return. On 1 August a judge refused an application by L and the mother for the return orders to be set aside and rescheduled the children’s return for no later than 25 August 2016. Once again the children did not return and on 26 August the mother made a further application for the return orders to be set aside. The judge hearing the mother’s application joined L as a party to the proceedings and, it being agreed that the High Court had the power to revoke a return order made under the 1980 Hague Convention if there was a significant change of circumstances, he concluded that on the evidence the change of circumstances, in particular with regard to the medical evidence as to L’s mental state, was so significant that it was reasonably likely that the court in February would have reached a different view had the material then been before it. He therefore set aside the return order in relation not only to L but also the other two children, being satisfied that the mother’s unwillingness to return without L was understandable and not inappropriate and that it would be intolerable for the younger children to return to Hungary in those circumstances. The father appealed on the grounds, inter alia, that the judge had failed to give sufficient weight to a number of factors with the result that his application of the law to the facts of the case was flawed and that he had fallen into error in finding that the separation of the siblings would come within article 13(b) of the 1980 Hague Convention.
On the appeal—
Held, appeal dismissed. The judge had carried out a careful review of the relevant factors, taking into account all that should have been taken into account, and he was entitled to weigh them up as he had in making his decision. In the circumstances, given the gravity of the consequences that might come to L if she were to be forced to return, there was nothing surprising or obviously wrong in the judge’s conclusion that, expressed in terms of the test he set himself, there had been “a significant change that might reasonably lead to a change in the order made for her return”. The judge was undoubtedly conscious that the order he was being asked to make was one which was “rarely invoked” but there were some rare cases in which the court had to divert from the normal process and the judge was entitled to take the view that this was one of them (paras 24, 25, 29, 30).
Per curiam. (i) Although reluctant, in the absence of comprehensive submissions, to make definitive pronouncements upon the subject of the existence, and, if it exists, the nature, of the High Court’s power to set aside 1980 Hague Convention return orders, the instant case shows that it is plainly desirable that there should be such a power in the High Court, albeit that it can be anticipated that it would rarely be used. If an application to set aside an order made under the 1980 Hague Convention could only be made to the Court of Appeal, this would have considerable practical disadvantages which would be likely to work against the interests of the children whose welfare should be served by the Convention since the Court of Appeal is not well suited to hearings of the type that would be required. Although every effort is made to accommodate Hague Convention cases speedily in the Court of Appeal, any application would have to take its turn in an already very over-charged list. It would require determination by two or three judges rather than one. The only appeal route from the Court of Appeal's decision would be to the Supreme Court. And it would, furthermore, not be feasible for the same judges to deal with the application to set aside and any resulting re-hearing of the original return application (paras 27, 29, 30).
(ii) Delay in resolving proceedings under the 1980 Hague Convention never assists the situation of the family concerned. Article 11 of the Convention itself requires that the “judicial or administrative authorities of contracting states shall act expeditiously in proceedings for the return of children” and a statement of the reasons for the delay may be sought if a decision has not been reached within six weeks from the date of commencement of proceedings. Article 11(3) of Council Regulation (EC) No 2201/2003 (“Brussels IIA”) requires that “the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged”. Everything possible should be done to process these applications urgently. The disruption caused by a wrongful removal and an imposed return to the country of habitual residence is minimised if the whole episode is concluded within a matter of weeks. If more time goes by, life in the new country may start to seem to the children like their established pattern of existence, battle lines may become firmly entrenched with the other parent, and the scope for damage is infinitely greater (paras 28, 29, 30).
Decision of Jonathan Cohen QC sitting as a deputy judge of the Family Division (unreported) 14 September 2016 affirmed.
Teertha Gupta QC and Mehvish Chaudhry (instructed by Freemans) for the father.
Richard Harrison QC and Jennifer Palmer (instructed by Dawson Cornwell ) for the mother.
Christopher Hames QC (instructed by Goodman Ray) for the children by the children's guardian.