A (A Child) (1980 Hague Convention: Set Aside)

This is an appeal from an order made by Mr Leslie Samuels QC, sitting as a Deputy High Court judge, on 20^th November 2020. The judge set aside a return order made by Ms Deidre Fottrell QC, also sitting as a Deputy High Court judge, on 29^th September

Following the grant of permission to appeal, an application was made on behalf the child (A), the subject of these proceedings, to be joined as a party. The application was made by, and supported by a statement from, solicitors instructed directly by A. Moylan LJ directed that the application was to be listed for determination with this appeal and gave permission for written and oral submissions to be made on behalf of A both in respect of the application to be joined and in respect of the substantive appeal.

A was born in England in 2008 and is now aged 12. His mother (M), a British national, met his father (F), an Italian national, in Italy in 2005. The couple moved to England for a brief period before A’s birth but, shortly afterwards, in 2008, travelled back to Italy where they lived as a family.

F was not named as A’s father on the birth certificate when A’s birth was registered in England. A few months after arriving in Italy, the parents attended the office of the local Municipality and signed a declaration recognising F’s paternity. A grew up in Italy with his parents. He attended nursery and primary school there. A and his mother travelled regularly to England to visit his maternal grandparents and extended family. On 27^th June 2019, when A was 10, M brought him to England. F says that there was an understanding that they would both return by mid-August, although no precise date had been set.

Over the summer of 2019, M decided that she would remain in England with A. F travelled to this jurisdiction to try and talk with M about their situation. There were two visits, the first between 15^th and 29^th August 2019, the second between the 3^rd and 10^th September 2019. On this second visit F discovered that A had been enrolled in school in England.

In February 2020 F collected A and took him to Italy for the half term break. A further trip was planned for 5^th April 2020. Though M had provided her consent to this trip, it was withdrawn and an ex-parte application made to prevent F removing A from the jurisdiction. F, who had travelled to England, returned to Italy and, shortly afterwards initiated proceedings under the Hague Convention by signing an application to the Italian Central Authority for the return of A.

On 8^th July 2020, Roberts J directed CAFCASS to prepare a report addressing: A’s wishes and feelings in respect of a return to Italy; his level of maturity; whether he should be separately represented in the proceedings and whether he wished to meet with the judge.

On 10^th September 2020, A met with Family Court Adviser Ms Jacqueline Roddy for 75 minutes. It was possible to arrange a face to face visit on this occasion. In her report, dated 11^th September 2020, Ms Roddy explained that A “spoke positively both about his life in England, and of his life in Italy”. When pressed on how he felt about the prospect of a return to Italy, A said that he did not know. Ms Roddy reports:

Ms Roddy observed that it was unusual, in her experience of these cases, for a child to resist being drawn on expressing a preference. She emphasised, however, that she was “confident” that the child’s responses were, in her assessment, entirely authentic and had not been influenced by either parent. Ms Roddy described A as “an able, bright child” who gave a reasonable account of his life and views. Accordingly, Ms Roddy did not consider that joining A as a party to the proceedings was necessary. Further, in light of A’s resistance to becoming embroiled in his parents’ dispute, she considered joining him as a party would be inappropriate. A did not wish to write to the judge directly, having been satisfied that his views would be communicated through the CAFCASS report.

On 28^th September 2020, the application for summary return was heard before Ms Deidre Fottrell QC. On 29^th September 2020, A’s summary return to Italy, by 11:59pm on 30^th October 2020, was ordered. In her judgment, dated 8^th October 2020, Ms Fottrell found, having accepted the expert evidence of an Italian lawyer, that F has rights of custody for the purpose of Article 3.

Ms Fottrell was satisfied that M’s defence, under Article 13(a), was not made out. M accepted that F did not know of her plans to remain in England when she brought A to this country in 2019. The available evidence demonstrated it was clear F wished for M to return with A to Italy. It was found that from July 2019 to April 2020, F was trying to reconcile with M, and then later focused his efforts on persuading her to return with A to Italy, or to allow A to come back to Italy with him. Further, F simply did not know about the 1980 Convention process and had not been advised he could make an application for the return of the child until April 2020. Mr Gupta QC, who resists the appeal on behalf of M, has endeavoured, rather ambitiously, to revisit the issue of acquiescence at this hearing but the argument is unsustainable in the light of these facts.

Similarly, Ms Fottrell was not persuaded that the high bar set in Article 13(b) was satisfied in this case. She noted that M’s submissions on this issue were brief and mainly focused on her concern that F could not properly care for A, highlighting that this was a welfare issue which fell outside the remit of the 1980 Convention. Further, the CAFCASS report did not, the judge considered, reflect a child who had internalised his abuse by F, as was submitted on behalf of M.

Accordingly, F’s application for summary return was granted. Consequential directions were made for F to collect A on a date to be agreed in the week commencing 23^rd October 2020, so that they could return together to Italy.

M was manifestly distressed by the court’s decision to order A’s return to Italy. On 30^th September 2020 (i.e. the day after the order was made), M contacted Ms Roddy to express her unhappiness with and surprise at the decision. It appeared that M simply had not really contemplated losing care of A. M also explained that she had contacted her local children’s department in an attempt to avoid having to comply with the return order. M expressed to Ms Roddy a concern that A had been reluctant to discuss negative aspects of his relationship with F and had not fully appreciated that a return to Italy would involve returning without M. Ms Roddy explained that the involvement of CAFCASS had ended and advised her to speak with her legal team.

F arrived in England on 17^th October 2020. M said that A was shocked when he learned of the decision of the court and had spoken to her every day about not wanting to return to Italy. In her statement, she exhibited a note from the School Safeguarding Officer and a handwritten note from A. In the note, A says he would like more time to think about things, as he was not sure he wants to leave his school and start at another one. He says “I didn’t want to choose between them as I love them both. But I would be happy if you would please let me stay here with my mum”. The exhibited note from the School Safeguarding Officer describes A “requesting more time to consider his options”. M had not informed the school that a decision had already been taken by the court.

F stated that he believed M embarked on a campaign since the making of the return order to try and do everything she could to undermine it. He relied on written messages from M sent to him on 16^th October 2020, threatening further to involve A if he did not give A ‘more time’ to make a decision about returning to Italy. Similarly, he said M posted the outcome of the proceedings on social media and asked her

Due to the restrictions, consequent upon the public health pandemic, it was necessary for Ms Roddy to speak with A via a video call. This took place on 30^th October 2020, and Ms Roddy finalised her second CAFCASS report on 3^rd November 2020. In her report she observed:

Ms Roddy explained that, despite her efforts to disabuse him, A retained a sense that it was his choice and responsibility to decide whether to return to Italy. She considered A clearly struggled with the responsibility and pressure that brought. She said that while it was unlikely that M would see her actions as overtly influencing her son, he had been affected by the experience of living with M’s distress for the last month, and her urgent efforts to thwart the court’s order. This, to my mind, is a benevolent interpretation.

Though this is not highlighted in the judgment of Mr Samuels, it is important to note that A told Ms Roddy that over the last weeks he had been thinking; balancing the options and had gradually reached the position that he wished to remain in the United Kingdom. He talked of having “had some time to think about it”. He spoke of how he had felt “a bit sad” at the prospect of leaving the UK on hearing of the court’s decision. He also said that if the court had decided that he should remain in the UK, that too would have made him feel “sad a bit as well”. A told Ms Roddy that he knew M was upset on learning that he was to return to Italy “because she told [him]”. The entire tenor of A’s account reflects his real sense of conflict. It most certainly does not reveal a young man who has wanted, throughout this investigation, to stay in the United Kingdom but has felt inhibited from expressing himself openly to the

It is also important to record that in relation to a move to Italy and, even in this October interview, A said “I don’t want to go but if I have to, have to – and I don’t want to go – if I have to I will go, but don’t really want to.” In two letters to the judge, sent only days apart, A expressed very different strengths of feeling.

Ms Roddy concluded that “it appears that he has reached a view that on balance he wishes to remain living in the UK with his mother. His views as expressed to the judge, through me, just about constitute an Objection to a return…”. Ms Roddy has, in her report, managed to convey both A’s ‘wishes’ and his ‘feelings’. She has not, as an experienced CAFCASS officer, elided the two, recognising that they are different concepts. A child’s feelings are frequently gauged not by what he says but by what he does not say. This thoughtful and reflective report captures both. It is carefully and sensitively written.

The judge heard oral evidence and submissions on 5^th and 6^th November 2020 and handed down a written judgment on 20^th November 2020. The judge refused M’s application for A to be joined as a party to the proceedings and for a guardian to be appointed to represent him. Applying Rule 16.2 of the Family Proceedings Rules

In relation to the application to set aside the return order, the judge identified the fourstage process set out in Re B (A Child) (Abduction: Article 13(b)) [2020] EWCA Civ 1057, [2021] 1 WLR 517 (“Re B”) at paragraph 89 (see below).

Referring to paragraph 90 of Re B, which clarifies that it may be possible for all four stages to be addressed at one hearing when the developments or changes relied upon are clear and already supported by evidence, the judge concluded that the present case “might be one of the situations canvassed” where it would be appropriate to do so.

The judge sets out his reasoning thus:

The judge concluded at paragraph 79 of his judgment that the evidence of A’s wishes and feelings amounted to “a fundamental change of circumstances” and “a fundamental change to the basis on which the previous order was made”. He noted that the previous judgment had centred on issues of rights of custody, acquiescence and intolerability, but that: “[this]hearing had an entirely different focus. The evidence plainly requires consideration and determination…”.

The judge proceeded to consider the three ‘limbs’ of the child’s objections defence, namely: that the child objects to being returned; that the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views; and whether or not to order a summary return: Re M (Abduction: Child’s Objections) [2007] EWCA Civ 260, [2007] 2 FLR 72.

Noting the “considerable dispute between the parents”, the judge found that it was “abundantly clear” that since the making of the return order on 29^th September 2020:

It is important to highlight that Ms Roddy also signalled (in the following and final sentence in her report) that it was for the court: “to determine whether that constitutes a fundamental change of circumstances” (my emphasis).

The judge records what A told Ms Roddy i.e.:

Whilst this is all broadly factually accurate, it requires to be balanced against the judge’s own clear findings that M had placed an emotional burden on A and “developed a narrative with A that he now needed to decide what he wanted to do” The judge also expressly agreed with Ms Roddy that “A had been pushed into a corner so that he had to express a preference despite his clearly expressed indication that this was the oppositeof the position he wanted to be in”. At paragraph 90 of his judgment the judge makes the following observation:

Though the judge clearly identifies a significant and sustained degree of pressure placed on A by his mother, he did not appear to consider that this compromised the authenticity of A’s expressed views. Having identified “a more complex” picture, the judge elucidates how he perceived that complexity, in these terms:

Mr Hames QC, on behalf of the appellant father, submits:

I propose, first, to address the application made by Ms Renton for A to be joined as a party to this appeal. F opposes that application. It is supported by M.

The legal framework is uncontroversial. In Re M (Children) (Republic of Ireland) (Child’s Objections) (Joinder of children as parties to appeal) [2015] EWCA Civ 26, [2016] Fam 1, Black LJ, as she then was, provided helpful guidance in respect of joinder of a child to an appeal where the child had not been a party in the court below:

it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.

The court may order a new party to be substituted for an existing one if –

the existing party's interest or liability has passed to the new party; and

it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings."

Rule 52.1 defines "appellant" and "respondent" for the purposes of part 52 as follows:

a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and

a person who is permitted by the appeal court to be a party to the appeal;"

Neither is there any equivalent in the CPR to the provisions of the FPR which require or permit a guardian to be appointed for a child. It may be that the provision in CPR Rule 52.10(1) whereby, in relation to an appeal, the Court of Appeal has all the powers of the lower court, would provide a basis for the appointment of a guardian. But that does not arise for decision in this case. Adequate protection for the child's interests on an appeal can generally be achieved in any event by means of a litigation friend appointed in accordance with Part 21 CPR.

Part 21 CPR deals with children and protected parties. A 'child' means a person under 18 years of age (Rule 21.1(2)(b)). Rule 21.2(2) provides that a child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under Rule 21.2(3) permitting the child to conduct the proceedings without. Rule 21.2(4) provides that an application for an order under Rule 21.2(3) can be made by the child. If the child already has a litigation friend, it must be made on notice to the litigation friend but may otherwise be made without notice. The court may appoint a litigation friend by order (Rule 21.6). Alternatively, Rules 21.4 and 21.5 deal with becoming a litigation friend without an order.”

In Re P (Abduction: Child’s Objections) [2020] EWCA Civ 260, Moylan LJ linked the observations above with the President’s Guidance on Case Management and Mediation of International Child Abduction Proceedings, 13^th March 2018 and concluded:

Applying the above framework to the facts of this case produces a clear answer. Ms

Were A to be joined as a party, his lawyers would no doubt advance his wishes and his instructions to the court. They are, however, less well placed to understand and articulate A’s feelings. In this respect the CAFCASS Officer holds the appropriate skills and, in deploying them, ensures that A’s wishes are most effectively conveyed to the court. Moreover, it is clear that A has been placed under considerable emotional pressure to express the preference M desires. Accordingly, there is a real danger that A’s instructions to his legal team may not reflect his own authentic voice. In such circumstances and as plainly contemplated by Moylan LJ in Re P (supra), joining A as a party would not merely fail to serve his best interests but would actively be contrary to his welfare. To join A as a party would only serve to heighten the conflict that he has struggled to avoid.

Accordingly, in my view, it is clear that the application made on his behalf should be refused. Before leaving this issue, I would want to make clear, in particular to A, that this decision is not because his views and interests are not important; it is because his

The legal framework is to be found in the FPR rule 12.52A and the amended Practice Direction PD12F 4.1A, which confirm the authority of the High Court to set aside its own orders in Hague Convention proceedings:

A party may apply under this rule to set aside a return order where no error of the court is alleged.

An application under this rule must be made within the proceedings in which the return order was made.

An application under this rule must be made in accordance with the Part 18 procedure, subject to the modifications contained in this rule.

Where the court decides to set aside a return order, it shall give directions for a rehearing or make such other orders as may be appropriate to dispose of the application.

This rule is without prejudice to any power the High Court has to vary, revoke, discharge or set aside other orders, declarations or judgments which are not specified in this rule and where no error of the court is alleged.”.

In Re B, Moylan LJ, at paragraph 81, referred to what he had said in Re W (Abduction: Setting Aside Return Order) [2019] 1 FLR 400, at paragraph 66:

Recognising the danger that, were the bar to be set low, it might result in attempts to frustrate decisions, Moylan LJ signalled, in Re B, that the Court would be vigilant to prevent this.

Moylan LJ also addressed the appropriate procedure to be applied when setting aside a return order. Drawing on the Court’s approach when considering the reopening of fact-finding hearings in Children Act proceedings, which he considered to be a helpful analogy, Moylan LJ identified a structure to guide the court. It has been referred to both by Mr Hames and Mr Gupta, as the ‘four-stage test’. The process can be gleaned from InRe Z (Children) (Care Proceedings: Review of Findings);

the court will first decide whether to permit any reconsideration;

if it does, it will decide the extent of any further evidence;

the court will next decide whether to set aside the existing order;

if the order is set aside, the court will redetermine the substantive application.

The judge’s approach, both to this test and to the high threshold required to establish a “fundamental change of circumstances”, has been subject to much scrutiny by the advocates. I can express my conclusions relatively shortly, as towards the end of the hearing it became clear to me that the appeal must be allowed. To my mind, both the approach the court should take and the threshold to be applied are entirely clear. Notwithstanding robust submissions to the contrary, I do not consider that the evidence in this case, as set out above, crossed the high bar, established both in the case law and fortified by the changes to the FPR. Indeed, I regard M’s application as a clear example of an attempt to reargue a case which had already been comprehensively determined. It is, in my view, precisely the kind of application which Moylan LJ was presaging in Re B (supra).

The 1980 Hague Child Abduction Convention is predicated on the principles of international comity and confidence. As such, it has created a summary jurisdiction intended to ensure that applications made pursuant to it are determined expeditiously. Intrinsic to the Convention is a recognition that delay in the legal process is likely to be inimical to the child’s welfare. Underpinning the philosophy of the Convention, is an understanding that a speedy return of the child to his home country will, in principle, enable the child’s future to be determined more effectively. The exception which arises in cases where a child objects to return is generated by two conditions: first, that the child himself objects to being returned and second, that he has attained an age and degree of maturity at which it is appropriate to have regard to his views.

Ms Roddy was clear, in her first report, that A did not want to express a view about, let alone decide, where or with which parent he should live. In her second report, Ms Roddy “just about” came to the view that A was objecting to return. Even in this second report, A’s views cannot, when taken at their highest, be construed as expressing an enthusiastic or unambiguous wish to stay in the UK. His remarks remain fretted with ambivalence. Contrary to the case advanced on M’s behalf, by Mr Gupta, A told Ms Roddy that he had still not decided where he wanted to live as recently as “about a week ago”. This was certainly not a case of long held views being misunderstood or misrepresented, which I understand M’s case to have been. As I have noted above, Ms Roddy was, very properly, at pains to emphasise that whether the evidence amounted to a ‘fundamental change’ was not an issue on which she was expressing a view. She considered that this was a matter for the Court; I agree.

A is described as a “lovely young man”. In my view, he has found himself being placed, or even pushed, both forward and centre in a dispute that is not of his making

The judge identified the ambit of his discretion in these terms:

For all the above reasons, in my view, this appeal must be allowed and an order made for A’s return to Italy.

Finally, I would want to repeat and make clear to A that, although we have refused the application that he be joined as a party, his interests are at the very centre of these proceedings. We would also want to make clear that it is the court which has the responsibility for making the decision in this case. It is, and never has been, A’s responsibility to make a choice or to decide. This court has carefully listened to all the points made to us including those made by Ms Renton on his behalf. We have, of course, also carefully considered all the evidence including that provided by Ms Roddy which includes everything he has said. We also have to consider the legal principles which apply to these proceedings. Having considered the points made to us, the evidence and those legal principles we have reached the clear answer as to what order we should make.

I agree.

I also agree.