N v J (Power to Set Aside Return Order)

In this case I am required to decide whether a High Court judge has power to set aside a return order made under the inherent jurisdiction by another High Court judge where no error on the part of the court is alleged and, if such a power exists, whether there are grounds for setting aside the return order made in this case by Francis J on 14 September 2017, in respect of which the mother is now in breach.

This question arises in the context of two sets of proceedings concerning G, aged 14, and H, aged 11. The children are respondents to proceedings under the Children Act 1989 commenced by their father, J (hereafter ‘the father’), and applicants in proceedings under the inherent jurisdiction through their Children’s Guardian, Mr Power. Ms Alev Giz appears on behalf of the children. The children are currently in the United States of America with their mother, N (hereafter ‘the mother’). The mother is represented by Mr Teertha Gupta, Queen’s Counsel. The father appears in person.

In the proceedings under the inherent jurisdiction, the mother now applies by way of an application issued on 19 September 2017 to set aside a return order made by Francis J on 14 September 2017, which order was granted upon the application of the children through their Children’s Guardian issued on 5 September 2017. In the ‘Summary of application’ section of Form C66, those representing the children described the orders sought as “Wardship; Return to England and Wales or alternatively relocation to California.” The order made by Francis J on 14 September 2017 required the mother to return the children to the jurisdiction of England and Wales by 21 September 2017 following what is said to be the mother’s wrongful retention of the children in the United States, specifically North Carolina. The mother’s application to set aside the return order was made on Form C2 within the proceedings under the inherent jurisdiction rather than by way of a fresh action.

The alleged wrongful retention by the mother which gave rise to the making of the return order followed an order made on 9 August 2017 in the proceedings under the Children Act 1989 by Her Honour Judge Harris, granting permission to the father to remove the children permanently from the jurisdiction of England and Wales to the jurisdiction of the United States, specifically California. Her Honour Judge Harris’ order followed a contested hearing at which the mother argued that the children should live with her in North Carolina. The children were with the mother on holiday in North Carolina at the time of Her Honour Judge Harris’ decision. The order of 9 August 2017 provided for the mother to hand the children over to the father in California on 24 August 2017. The mother has not thus far done so.

The mother’s application to set aside the return order made by Francis J on 14 September 2017 is advanced within a wider procedural landscape. First, the mother now pursues an appeal in respect of the order of Her Honour Judge Harris of 9 August 2017. The appellate proceedings are listed before Baker J on 22 November 2017 for an oral permission hearing with the appeal to follow if permission is granted. On 8 September 2017 Baker J refused an application by the mother to stay the order of Her Honour Judge Harris. The mother has now also commenced proceedings in North Carolina in respect of the children and a hearing is listed in those proceedings on 11 October 2017.

It is within this context that the mother now contends, through Mr Gupta, that this court has the power to review and set aside a return order made under the inherent jurisdiction by another High Court judge and that the court should exercise that power on the grounds of (a) material non-disclosure at the hearing on 14 September 2017 and (b) a material change of circumstances since the hearing on 14 September 2017. In her statement in support of her application, the mother also contends that the return order should be set aside by reason of her being “denied the right of representation” at that hearing. The mother’s application is resisted by both the father and the Children’s Guardian, who contend that the mother is in breach of the order of 14 September 2017, which breach should now be the subject of enforcement proceedings.

During the course of the hearing, I gave consideration to adjourning the mother’s application to set aside the return order pending the outcome of the mother’s application for permission to appeal. However, in circumstances where the return order remains in force, where the mother remains, on the face of it, in breach of that order, and where the mother’s application for permission to appeal is listed on 22 November 2017, I was ultimately satisfied that it is necessary to determine the application at this stage. All parties concurred with this approach. Given the disputed position regarding the question of whether this court has power to set aside a return order made by another judge of the Division, and the lack of definitive authority on this point, I reserved judgment.

The background to this matter is a protracted one, and somewhat unusual. The parents having been engaged sporadically in litigation concerning their children since shortly after their separation in 2010. For the purposes of the question before this court, the following salient points are relevant.

The parents were married in 2002 and separated in 2010. In addition to G and H, they have one other daughter, T, who is not the subject of these proceedings. T lives with the mother in North Carolina, Her Honour Judge Harris having given permission to the mother in April 2015 to remove T permanently from this jurisdiction. That order provided for G and H to live with the father in the jurisdiction of England and Wales.

In March 2017, the father applied for permission to remove G and H permanently from the jurisdiction, his intention being to move with them to California. On 22 March 2017, the mother was deemed to have made an application for permission to remove G and H from the jurisdiction to live with her in North Carolina.

On 9 August 2017, following a contested hearing over three days, during which she heard evidence from the mother, the father and Mr Power, Her Honour Judge Harris gave the father permission to remove G and H from the jurisdiction of England and Wales. The order of Her Honour Judge Harris made provision for contact between G and H and the mother. The order of 9 August 2017 also made provision for the mother to lodge any application for permission to appeal by 4pm on 14 August 2017. At the time Her Honour Judge Harris made her order on 9 August 2017, G and H were on holiday with their mother in North Carolina. In the circumstances, Her Honour Judge Harris ordered that the mother must deliver G and H to the father in California by no later than 1pm local time on 24 August 2017.

The mother applied for permission to appeal and on 14 August 2017 Her Honour Judge Harris refused permission to appeal, dealing with that application on paper. The learned Judge did however, stay her order of 9 August 2017 until 23 August 2017 to allow the mother time to make a further application for permission to appeal.

The order of 14 August 2017 incorrectly stated that such an application should be made to the Court of Appeal. Within that context, on 30 August 2017, the mother applied to the Court of Appeal for permission to appeal. Having been informed that the correct route of appeal was in fact an appeal to a judge of the Family Division, on 31 August 2017 the mother applied to the Family Division for permission to appeal and a stay of Her Honour Judge Harris’ order of 9 August 2017. Baker J listed the matter for consideration of the mother’s application for a stay only on 8 September 2017.

Having considered the papers, and having heard submissions from junior counsel Ms Charlotte Baker on behalf of the mother, the father in person and Ms Giz on behalf of the children, Baker J concluded that G and H had been retained unlawfully in North Carolina by the mother after 1pm on 24 August 2017 in breach of the order of Her Honour Judge Harris dated 9 August 2017. Upon the father undertaking that in the event of the children being returned to this jurisdiction, he would not remove the children from this jurisdiction pending the determination of the mother’s application for permission to appeal, Baker J refused the mother’s application for a stay of the order of Her Honour Judge Harris of 9 August 2017. Baker J also refused the mother’s application to move straight to an oral hearing of her application for permission to appeal at the hearing on 8 September 2017.

Notwithstanding the dismissal of her applications for permission to appeal by Her Honour Judge Harris on 14 August 2017, the refusal of her application to stay the order of 9 August 2017 by Baker J on 8 September 2017, and Baker J’s determination on 8 September 2017 that G and H had been retained unlawfully in North Carolina, the mother continued, and continues, to retain in G and H in North Carolina in contravention of the order of Her Honour Judge Harris.

Within this context, and as I have recounted, on 5 September 2017 the Children’s Guardian issued an application under the inherent jurisdiction of the High Court to make the children wards of court and for an order that the mother return the children to the jurisdiction of England and Wales. As already noted, that application came before Francis J on 14 September 2017.

There is an issue between the parties regarding the extent to which the mother was given, and the extent to which she should have availed herself of the opportunity to attend the hearing before Francis J on 14 September 2017 by means of a telephone link from North Carolina.

The solicitor for the child placed both the mother and the father on notice by means of a letter dated 4 September 2017 that an application for a return order was to be made. That letter is exhibited to the mother’s statement and indicates that those representing the children would be attending before the urgent applications judge on 8 September 2017 at 10.30am and that a copy of the application would be provided “shortly”. On 8 September 2017, the matter came before Baker J with the mother’s application for a stay and, as I have noted, Baker J determined only the mother’s application for a stay on that date.

In her statement in support of her application to set aside the order of 14 September 2017, the mother states that the solicitor for the children thereafter informed her solicitor on 11 September 2017 that the application for a return order would be restored to court on 14 September 2017. That letter is also exhibited to the mother’s statement. It makes clear that the hearing of the application was to be on 14 September 2017 at 2pm. The letter from the solicitor for the children states “We are specifically attending at 2pm so that instructions may be taken by telephone from [the mother] at a suitable hour in the US”.

The mother states that in response to the letter of 11 September 2017, her solicitors wrote to the court on 13 September 2017. That letter, a copy of which is likewise exhibited to the mother’s statement, rehearses the mother’s arguments against a return order being made. It also enclosed the Skeleton Argument prepared by Mr Gupta in support of the mother’s application for a stay of the order of 9 August 2017 and for permission to appeal, which Skeleton Argument set out in some detail the background to the case. It also rehearsed in detail the mother’s arguments for the children remaining in the United States. The letter also attached the Position Statement filed on the mother’s behalf for the hearing of her application for a stay of the said order on 8 September 2017 and letters written by the children following the making of the order dated 9 August 2017. The arguments advanced by the mother against the making of a return order as set out in the letter of 13 September 2017 and the documents attached to it comprised the following:

By way of conclusion, the letter to the court of 13 September 2017 states “Unfortunately our client is unable to afford the cost of representation at the hearing on Thursday but will be available by telephone”. Within that context, the mother contends that on 14 September 2017, her solicitors emailed the solicitor for the children providing two numbers that she could be contacted on, and that the solicitor for the children had, at the same time, emailed requesting her contact details. Copies of those emails are exhibited to the mother’s statement. The mother contends that this led her to believe that she would be contacted by the court by telephone at the start of the hearing on 14 September 2017 but that this did not happen. Accordingly, the mother contends she was denied an opportunity to participate in the hearing before Francis J which led the making of a return order with a penal notice attached.

In so far as is relevant to the issue of the mother’s attendance and the extent to which her arguments against the making of a return order were before the court, the order of Francis J of 14 September 2017 records as follows:

“AND UPON the Respondent mother (‘the mother’) not attending the hearing or being represented but the Court receiving a letter from the mother’s solicitors, Irwin Mitchell, dated 13 September to which was attached the mother’s skeleton argument filed by the mother in support of her application for permission to appeal the order made by Her Honour Judge Harris dated 9 August 2017, the position statement filed on her behalf for the hearing of her application for a stay of the said order on 8 September 2017 and letters written by the children following the making of the order dated 9 August 2017 and in which the mother’s position and response to the application before the court today was fully set out.

AND UPON the Court being satisfied that the mother and her solicitors were given notice of the application made today on behalf of the children and were served with the application and supporting documentation.”

In the circumstances, the order records that the Court had received the letter of 13 September 2017 and attached documents setting out her arguments, in which letter it was also stated that the mother “will be available by telephone”.

I have also had the benefit of a transcript of the hearing before Francis J on 14 September 2017. Dealing first with the question of the mother’s attendance, the transcript makes clear that Francis J had had the letter of 13 September 2017, and the documents attached thereto, drawn to his attention. It is equally clear from the transcript however, that at no point during the hearing as transcribed, and even when the issue of the extent to which the mother was on notice of the hearing was being discussed, was Francis J’s attention drawn specifically to the part of the letter that confirmed that the mother was available by telephone and that the mother’s solicitors had communicated the mother’s contact details to the solicitor for the children shortly before the hearing. This continued to be the position when the letter was referred to again in the second part of the hearing and when Francis J very properly enquired whether those representing the children were aware of any matters adverse to their application in circumstances where the mother was not present and not represented.

Within the foregoing context, the parties’ positions remain considerably at odds on the issue of the mother’s non-attendance at the hearing on 14 September 2017. The mother contends that she was denied her “right of representation”. On behalf of the children, Ms Giz contends that the letter of 13 September 2017 indicating that the mother was contactable by telephone was drawn to the attention of Francis J. The father states that the mother is fully aware that “advanced co-ordination” is required to secure attendance by way of audio link, the mother having availed herself of this facility on at least three previous occasions, but that neither the mother nor her solicitors followed the well-established procedure of contacting the court to ensure arrangements for a telephone link were in place.

The mother purported to file a second statement in support of her application to set aside the return order, notwithstanding that no permission had been given for her to do so. In it, it is said that the mother makes a series of inflammatory and serious allegations regarding the conduct of other parties to these proceedings and those representing the children, to which the latter take extreme exception. In circumstances where the mother had no permission to file the second statement I have not had regard to the contents of that statement in reaching the conclusions that I do in this judgment, and make no findings in respect of the allegations raised in that statement. As I made clear during the hearing, the terms in which the mother is said to have expressed herself in her second statement are unhelpful. Serious allegations of the nature of those said to have been levelled by the mother should only be made if there is the most cogent evidence to support them.

Having regard to the evidence that is properly before the court pursuant to the case management directions given with respect to this hearing, I am satisfied that a number of factors conspired to result in the mother not being in attendance by way of telephone link at the hearing on 14 September 2017.

It is well established good practice that a party wishing to attend a hearing by telephone or video link must, either themselves or through their legal representatives, arrange that link prior to the commencement of the hearing. The court does not have the facility to make outgoing international telephone calls. In the circumstances, such links require to be set up ahead of time so that the relevant party can dial into the hearing at the appropriate time. It is not appropriate simply to inform the court of a number on which the litigant can be reached. In this case, those formally on the court record as representing the mother failed to liaise with the court ahead of the hearing as they should have done to ensure a telephone link was set up. Further, the letter to the court dated 3 September is ambiguous. It simply states that the mother “will be available by telephone”. There is no request that the court initiate a call with the mother. She made attempt herself to contact the court. In addition to these factors, whilst it is plain that the letter of 13 September 2017 was before the court, it would appear that at no point during the hearing did those representing the children, or the father draw the judge’s attention drawn specifically to the passage relating to the mother’s position with respect to attendance.

Dealing next with the extent to which the mother’s arguments were before the court, in addition to the recitals on the face of the order making clear that the Francis J had had site of the letter of 13 September 2017 and the documents attached to it setting out in some detail the mother’s contentions, it is further clear from the transcript that Francis J was aware of, and examined certain of the arguments raised in the letter from the mother’s solicitors dated 13 September 2017 and the Skeleton Argument enclosed with it. In particular:

Within the foregoing context, the position on 14 September 2017 was that the mother’s arguments against the making of a return order were before the court on paper in relatively full terms, and Francis J engaged with those arguments with some assistance from Ms Giz. However, in the circumstances I have already outlined, the court did not have the benefit of oral representations from the mother regarding the merits of the application for return orders in respect of the children.

Having considered the information before him, and having heard submissions from Ms Giz and the father, Francis J declined on 14 September 2017 to make the children wards of court. He did however, conclude that the children had been wrongfully retained by the mother and that the “status quo” prior to 9 August 2017 needed to be preserved. In the circumstances, Francis J acceded to the application for an order under the inherent jurisdiction that the mother return the children to the jurisdiction of England and Wales and into the care of the father, stipulating that this should occur by 4.30pm on 21 September 2017. That order has not been the subject of an appeal and remains in force.

The orders made by Francis J were predicated upon the following matters, recorded in the order of 14 September 2017 as ‘Declarations’ on the evidence then available:

“A.

The Court is of the view that the children, [G and H] were habitually resident in England and Wales at the date when Her Honour Judge Harris gave her Judgment and made her Orders, namely 9 August 2017 and continue to be habitually resident in England and Wales;

B.

The children appear to have been wrongfully retained by the mother in North Carolina;

C.

The retention by the mother of the children in North Carolina appears to be in direct breach of the Order made by Her Honour Judge Harris dated 9 August 2017 (as amended on 11 August 2017);

D.

No stay of the order of Her Honour Judge Harris dated 9 August 2017 (as amended on 11 August 2017) has been granted and the mother’s application for a stay was refused by Mr Justice Baker on 8 September 2017;

E.

It appears to the Court that there is no jurisdiction for the Court in North Carolina in respect of the child and that the proceedings commenced in North Caroline should be stayed.”

Pausing for a moment to consider the last of those ‘Declarations’. The ‘Declaration’ made by Francis J to the effect that there was no jurisdiction for the Court in North Carolina in respect of the child and that the proceedings commenced in North Carolina should be stayed, appears to have arisen from a request by those representing the children that Francis J stay the proceedings in North Carolina. Francis J rightly declined to do so. The ‘Declaration’ that Francis J did make on this subject followed submissions by Ms Giz that appear to have been predicated on the mistaken belief that the English court has some species of jurisdiction to stay ongoing proceedings in a foreign state.

A further hearing took place before Francis J on 28 September 2017. At that hearing Francis J set down the mother’s application to set aside the order of 14 September 2017 for hearing and gave directions for the filing and serving of statements by the parents in respect of that application and the filing and serving of a Position Statement by the Children’s Guardian. Francis J refused applications by the Children’s Guardian for a further return order and for an order compelling the mother to attend today’s hearing on penalty of penal sanction. I am not prepared to accept Mr Gupta’s submission that these two latter facts indicate that Francis J had changed his mind about the efficacy of a return order. It was simply the case that there was already a return order containing a penal notice which remained force and in respect of which the mother was in breach, as Francis J was at pains to make clear on the face of his order. The mother was given permission to attend today’s hearing by telephone, which she has done.

Finally, the court has during the course of this hearing had the benefit of receiving the order of Baker J detailing the outcome of the mother’s application for permission to appeal the order of Her Honour Judge Harris dated 9 August 2017. As I have set out earlier in this judgment, Baker J has determined that there should be an oral hearing of the mother’s application for permission to appeal on 22 November 2017, with the substantive appeal to follow immediately in the event that permission is granted.

Baker J has attached a number of conditions to his order, in particular that the mother must attend the appeal hearing on 22 November 2017 in person, that she must sign and return a formal written undertaking by 6 November 2017 that, in the event permission to appeal is refused, or permission to appeal is granted but the appeal dismissed, she will comply with the order of 9 August 2017 and that she must, no later than 20 October 2017, make the children available to speak to the Children’s Guardian. In the event that the mother fails to comply with these conditions, the order of Baker J provides that the mother’s application for permission to appeal shall stand dismissed. The order further grants all parties liberty to apply on notice to vary the conditions Baker J set out.

On behalf of the mother, Mr Gupta submits that, notwithstanding the terms of s 17(2) of the Senior Courts Act 1981, this court has power under FPR r 4.1(6) to set aside a return order made under the inherent jurisdiction by another judge of the High Court where no error on the part of the court is alleged, on the grounds of fraud, mistake, a significant change of circumstances or material non-disclosure. Understandably, the father did not make legal submissions as to the court’s jurisdiction to set aside the return order. In oral submissions Ms Giz submits that FPR r 4.1(6) does not provide any proper foundation for setting aside the court’s own substantive order, there being nothing in the wording of the rule to suggest it can extend beyond the variation of revocation of case management orders made pursuant to that rule. It should not, says Ms Giz, be interpreted as allowing the revocation of substantive orders. Ms Giz submits that in the circumstances of this case s 17(1) of the Senior Courts Act 1981 mandates an appeal.

Mr Gupta submits further that the court should set aside the return order made by Francis J on the grounds that there has been a significant change of circumstances between the making of the return on 14 September 2017 and the date of this hearing. Mr Gupta relies on the statement of the mother as setting out the relevant changes. In summary, he contends that the following matters amount to a change of circumstances between 14 September 2017 and the date of this hearing:

Mr Gupta further contends that there was material non-disclosure on 14 September 2017 sufficient to justify the setting-aside of the return order. It was difficult to glean from the evidence before the court, and from Mr Gupta’s submissions, the precise nature of the material non-disclosure that is alleged but the point appeared to centre on the extent to which Francis J had been made aware that the mother was contending that the children are now habitually resident in the United States. More broadly, Mr Gupta’s submission in this respect concentrated on the fact that the mother had not been able to attend the hearing on 14 September 2017 in the circumstances that I have outlined and on which basis the mother contends she was denied her “right of representation”. This, says Mr Gupta, meant that Francis J was not fully appraised of the situation regarding the children in the United States and the progress of the mother’s appeal. Mr Gupta further points to the unfairness of the mother not being able to involve herself in the hearing.

Finally, Mr Gupta submits that setting aside return at this point would be in both children’s best interests. Mr Gupta submits that a return would be against both children’s best wishes. He further submits that such an order goes entirely against their expectations at the conclusion of the final hearing, namely that, one way or another, they believed they had left the jurisdiction of England and Wales permanently with all that such a final departure involves. Further, Mr Gupta submits that the children, contrary to the indication provided by their legal team, do not want the order for return enforced and are competent to provide instructions accordingly. Finally, Mr Gupta says that it is not in the children’s best interests to be returned to this jurisdiction when they have been living in North Carolina for two months and are increasingly integrated into school and home life, and where, on the father’s own case before Her Honour Judge Harris, it is in the children’s best interests to reside in the United States.

The father submits that there has been no change of circumstances between 14 September 2017 and the date of this hearing and that there was no material non-disclosure at that hearing. He submits that the position before the court today is precisely the same as that which faced Francis J on 14 September 2017, on which date Francis J determined that the circumstances merited a return order as being in both children’s best interests.

Ms Giz likewise submits that there has been no change of circumstances between 14 September 2017 when the return order was made by Francis J and this hearing. Rather, submits Ms Giz, the position has been static. In response to the points raised by the mother, Ms Giz submits that it was plain on the face of the papers before Francis J that the mother was stating on 14 September 2017 that the children did not want to move the care of their father and that exactly the same position pertains before the court today. In this context, Ms Giz submits that there has been no change of circumstances in this regard from 14 September 2017. With respect to the mother’s appeal, Ms Giz submits that the fact that the mother’s permission application has been listed for oral hearing does not amount to a change of circumstances. Ms Giz submits that the position today is fundamentally the same as it was before Francis J on 14 September 2017, namely that the mother has issued an application for permission to appeal and that application for permission has yet to be determined.

On the issue of habitual residence, Ms Giz submits that Francis J was fully aware that the mother was arguing a change of habitual residence leading to a loss of jurisdiction by the English court when he made the return on 14 September 2017 and had rejected that assertion. Within this context, Ms Giz submits that the position today is the same as it was before Francis J and that, in any event, if it is asserted that Francis J’s conclusion as to habitual residence was wrong, the appropriate forum for consideration of such an assertion is the appellate court. Further, Ms Giz submits that the mother should not be able to take advantage of her breach of the order of Her Honour Judge Harris, and of the return order, by leveraging those breaches into a change of circumstances which is then used to justify setting aside the very order with which she has failed to comply. Finally, with respect to the mother’s assertions concerning the children’s schooling and the father’s decision to remain in England, Ms Giz submits that, once again, this was precisely the same situation when the matter came before Francis J.

With respect to the question of material non-disclosure, as I have already noted, Ms Giz pushes back strongly against the assertion that material matters were withheld from Francis J at the hearing on 14 September 2017 or that the non-attendance by the mother meant that Francis J was deprived of knowledge of relevant matters. I have set out above the position that is apparent from the documentation sent to the court by the solicitors acting for the mother and from the transcript of the hearing of 14 September 2017.

Finally, with respect to the children’s welfare, Ms Giz submits that Her Honour Judge Harris, following an exhaustive welfare evaluation, determined that the children should be living with their father, who had been their principle carer since the matter was last before the court in 2015. Within this context, Ms Giz submits that, having regard the tenor of the children’s communications, the Children’s Guardian is concerned that they are currently in an environment that is hostile to the promotion of their relationship with their father and not reflective of the determination of Her Honour Judge Harris as to what is in the children’s best interests. Within this context, and in circumstances where both the court at first instance and the appellate court has refused to stay the order that gives effect to Her Honour Judge Harris’ judgment, Ms Giz submits that the return order remains in the children’s best interests.

As Mr Gupta rightly points out, in circumstances where the issue under consideration is whether a High Court judge can set aside or revoke a return order made under the inherent jurisdiction by another High Court judge, the starting point must be s 17 of the Senior Courts Act 1981, which provides as follows:

“Applications for new trial

17.-(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.

(2)

As regards cases where the trial is by a judge alone and no error of the court at trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.”

In In re L (Children) (Preliminary Finding: Power to Reverse) [2013] 1 WLR 634, Baroness Hale noted as follows with respect to the evolution of the principle articulated in s 17 of the Senior Courts Act 1981 that, absent rules created under that provision, any application for a new trial of, or to set aside a verdict, finding or judgment in a matter tried in the High Court, shall be heard and determined by the Court of Appeal:

“[17] The modern story begins with the Judicature Acts 1873 (36 & 37 Vict c 66) and 1875 (38 & 39 Vict c 77), which amalgamated the various common law, chancery and doctors' commons jurisdictions into a single High Court and created a new Court of Appeal for England and Wales. In In re St Nazaire Co (1879) 12 Ch D 88, the Court of Appeal decided that there was no longer any general power in a judge to review his own or any other judge's orders. Malins V-C had permitted a petition to proceed which sought to vary an earlier order which he had made and which had been unsuccessfully appealed to the Court of Appeal. The Court of Appeal held that he had no power to do so. Jessel MR explained that the Judicature Acts had changed everything. Before they came into force, the Lord Chancellor, Vice-Chancellor and Master of the Rolls had power to rehear their own decisions and, indeed, the decisions of their predecessors. He remarked that “the hope of every appellant was founded on the change of the judge”: p 98. (An example of Jessel MR revisiting one of his own orders is In re Australian Direct Steam Navigation (Miller's Case) (1876) 3 Ch D 661.) But such an application was in the nature of an appeal and jurisdiction to hear appeals had now been transferred to the Court of Appeal. Thesiger LJ added that, “whatever may have been the practice in the High Court of Chancery before the Judicature Act as to the review of their decisions or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to that in the Common Law courts” 12 Ch D 88, 101. The court's conclusions harmonised the practice in all Divisions of the newly amalgamated High Court.”

Within this context, the effect of s 17 of the Senior Courts Act 1981 is that the High Court does not have power, where “any cause or matter, or any issue in any cause or matter, has been tried in the High court”, to set aside its own verdict, finding or judgment, save where rules of court regarding cases tried by a judge alone and in which no error of the court at trial is alleged, or rules regarding any prescribed class of such cases, made pursuant to s 17(2) provide otherwise.

The FPR 2010 do not contain any provisions made pursuant to the Senior Courts Act 1981 s 17(2) providing that a party may apply to set aside orders in respect of children where no error of the court is alleged, whether under FPR Part 12 (children proceedings, except parental order proceedings and proceedings for applications in adoption, placement and related proceedings) or otherwise. However, Mr Gupta nonetheless contends that FPR 2010 r 4.1(6) permits the High Court to vary or revoke its own orders in respect of children, including return orders made under the inherent jurisdiction of the High Court.

FPR r 4.1, as amended by the Family Procedure (Amendment) Rules 2012, provides as follows as far as is material to the issues before this court:

“GENERAL CASE MANAGEMENT POWERS

4.1

The court's general powers of management

(1)

In this Part, ‘statement of case' means the whole or part of, an application form or answer.

(2)

The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(3)

Except where these rules provide otherwise, the court may –

(a)

extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b)

make such order for disclosure and inspection, including specific disclosure of documents, as it thinks fit;

(c)

adjourn or bring forward a hearing;

(d)

require a party or a party's legal representative to attend the court;

(e)

hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(f)

direct that part of any proceedings be dealt with as separate proceedings;

(g)

stay the whole or part of any proceedings or judgment either generally or until a specified date or event;

(h)

consolidate proceedings;

(i)

hear two or more applications on the same occasion;

(j)

direct a separate hearing of any issue;

(k)

decide the order in which issues are to be heard;

(l)

exclude an issue from consideration;

(m)

dismiss or give a decision on an application after a decision on a preliminary issue;

(n)

direct any party to file and serve an estimate of costs; and

(o)

take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

(Rule 21.1 explains what is meant by disclosure and inspection.)

(4)

When the court makes an order, it may –

(a)

make it subject to conditions, including a condition to pay a sum of money into court; and

(b)

specify the consequence of failure to comply with the order or a condition.

(5)

Where the court gives directions it will take into account whether or not a party has complied with any relevant pre-action protocol.

(6)

A power of the court under these rules to make an order includes a power to vary or revoke the order.

(7)

Any provision in these rules –

(a)

requiring or permitting directions to be given by the court is to be taken as including provision for such directions to be varied or revoked; and

(b)

requiring or permitting a date to be set is to be taken as including provision for that date to be changed or cancelled.

As I have already intimated, FPR r 4.1(6) is not a rule made pursuant to the provisions of s 17(2) of the Senior Courts Act 1981. The statutory instrument containing the FPR 2010, SI 2010/2955 makes clear that the FPR 2010 are made under the powers conferred by a number of statutes, but not the Senior Courts Act 1981. The amendments to FPR r 4.1 made by the Family Procedure (Amendment) Rules 2012 were likewise not made pursuant to s 17(2) of the Senior Courts Act 1981.

Mr Gupta rests his submission that the High Court is nonetheless able to set aside or revoke its own orders in respect to children under FPR r 4.1(6) on the decision of Mostyn J in In re F [2015] 1 WLR 4375. In that case, the court was concerned with an application by a mother to revoke a return order made in the High Court pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction as incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985 (as distinct from this case where the return order was made under the inherent jurisdiction). The mother applied to revoke the return order on the grounds that since the order was made, she had suffered what was described as a “total psychological and psychiatric collapse”. Following full argument, Mostyn J rejected the submission that there is no power in the High Court to vary or set aside a return order made by another High Court judge. Rather, Mostyn J concluded that such a power existed by virtue of FPR r 4.1(6) in relation to all children proceedings.

In reaching this conclusion Mostyn J noted, by way of analogy, a number of civil authorities concerning CPR r 3.1(7), which is drafted in identical terms to FPR r 4.1(6), namely:

“(7)

A power of the court under these Rules to make an order includes a power to vary or revoke the order”.

As with the FPR 2010, the CPR 1998 were not made under s 17(2) of the Senior Courts Act 1981, but rather were made under s 1 of the Civil Procedure Act 1997.

In Lloyd’s Investment (Scandinavian) Ltd v Ager-Hanssen [2003] EWHC 1740 Paten J considered that CPR r 3.1(7) was not confined to purely procedural orders. In Collier v Williams [2006] 1 WLR 1945 the Court of Appeal, endorsing the approach of Paten J in Lloyd’s Investment (Scandinavian) Ltd v Ager-Hanssen, held that CPR r 3.1(7) gives a very general power to vary or revoke an order and appears to be unfettered, subject to the need to demonstrate a material change of circumstances or non-disclosure. In Tibbles v SIG [2012] 1 WLR 2591, a case involving an interlocutory order, the Court of Appeal described CPR r 3.1(7) as apparently broad and unfettered in its operation, but expressed the view that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all pushed towards a principled curtailment of an otherwise apparently open discretion. It is important to note that the authorities concerning the ambit of the jurisdiction to set aside orders under CPR r 3.1(7) consistently emphasise that there is an important distinction to be made between those cases where the order that is sought to be revoked or varied is purely procedural, or interlocutory, and those where it is final, in that it disposes of the claim or some part of the claim.

Within this context, in In re F Mostyn J noted the decision of Roult v North-West Strategic Health Authority [2010] 1 WLR 487, a case concerning a claim to revoke or vary the approval by a High Court judge of a settlement in a case of personal injury. Specifically, Mostyn J recorded that Hughes LJ (as he then was), having observed that there was scant authority upon CPR r 3.1(7) but such authority as existed was unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order, held, in line with the views expressed in Lloyd’s Investment (Scandinavian) Ltd v Ager-Hanssen and approved in Collier v Williams, that CPR r 3.1(7) is not expressly confined to procedural orders. However, it is also of note that Hughes LJ, with whom Smith LJ and Carnwath LJ agreed, went on to decline to attempt any exhaustive classification of the circumstances in which it may be proper to invoke CPR r 3.1(7) and, in that context, observed as follows at [15] and [16]:

“It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue—an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist. This order was a final disposal of many of the issues between the parties. It was in no sense a case management order, and the fact that there remained other issues which did need managing towards future disposal does not alter that position”

In reaching his decision in In re F that there is jurisdiction in the High Court under FPR r 4.1(6) to vary or set aside a substantive order made by another High Court judge in relation to all children proceedings, Mostyn J also placed reliance on the decision of the Supreme Court in In re L (Children) (Preliminary Finding: Power to Reverse), concerning the scope of the power of a judge to reverse his or her decision before the order had been drawn up and perfected. In particular, Mostyn J noted the following passage from the judgment of Baroness Hale examining, but not determining, the question of whether the position would be the same if the order in question has been formally drawn up and sealed:

“[37] Both the CPR and the Family Procedure Rules make it clear that the court's wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and FPR r 4.1(6). This may be done either on application or of the court's own motion: CPR r 3.3(1), FPR r 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else's) orders which led to the decisions in In re St Nazaire Co 12 Ch D 88 and In re Suffield and Watts; Ex p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.

[38] Clearly, that power does not enable a free-for-all in which previous orders may be revisited at will. It must be exercised “judicially and not capriciously”. It must be exercised in accordance with the overriding objective. In family proceedings, the overriding objective is “enabling the court to deal with cases justly, having regard to any welfare issues involved”: rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments. The facts of In re M and MC [2003] 1 FLR 461 are a good example. At the fact-finding hearing, the judge had found that Mr C, and not the mother, had inflicted the child's injuries. But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them. The Court of Appeal ruled that, at the next hearing, the judge should subject the mother's apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings.

[39] The question is whether it makes any difference if the later development is simply a judicial change of mind. This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear-cut.”

Beyond the decision of Mostyn J In re F, Mr Gupta cites a number of other authorities that touch on, but do not determine definitively, the question of whether the High Court is able to set aside a return order made in the High Court pursuant to its inherent jurisdiction.

First, Mr Gupta submits the decision of Mostyn J in In re F “appears to have been cited with approval” by the President in S v S [2015] 1 WLR 4592. Mr Gupta points up that in S v S the President examined the ambit of FPR r 4.1. (6) in the context of financial remedy proceedings in the Family Court. The issue in S v S was whether an appeal was the only route to set aside a consent order made in matrimonial proceedings in the newly formed Family Court. The President was satisfied that the Family Court has, in the context of a form of remedy long recognised by the common law, and by virtue of section 31F(6)(a) of the Matrimonial and Family Proceedings Act 1984 and FPR r 4.1(6), a general power to “rescind” or “revoke” an order. The President further concluded that this power in the Family Court, although general, is not unbounded. Having considered the decision of Mostyn J in In re F the President observed as follows, albeit framing his observation in the context of claims for financial remedy orders rather than in the context of orders relating to children:

“In the light of this survey of the authorities, I conclude that the decision in Roult's case will not bear the weight of the argument that Mr Brunsdon Tully seeks to derive from it. In common with Mostyn J in In re F [2014] 1 WLR 4375, I read the decisions of the Court of Appeal in Karim’s, Sharland's and Gohil's cases as demonstrating that FPR r 4.1(6) continues to permit what had long been established, namely that an application such as the one being made here by the wife can be made to the judge at first instance.”

The conclusions of the President in this respect in S v S were endorsed by Baroness Hale in Sharland v Sharland [2016] AC 871 at [41] in which Baroness Hale agreed with the proposition that FPR r 4.1(6) does give the Family Court the power to entertain an application to set aside a final order in financial remedy proceedings on the well-established common law principles applicable to such applications. Lady Hale went on to observe that in the circumstances, an application could be made either by way of an appeal or by way of an application to a first instance judge, but that there remained difficult issues as to how such an application should be made, whether within or without the original proceedings, and whether it would be appropriate for the rules or a practice direction to specify criteria for choosing between an appeal and an application at first instance, endorsing in this context the observations of Lord Wilson in Gohil v Gohil at [18] that presaged the introduction of FPR r 9.9A formalising the procedure for dealing with the setting aside of financial remedy orders. I pause to note that FPR r 9.9A was made under s 17(2) of the Senior Courts Act 1981.

In Norman v Norman [2017] EWCA Civ 120, a decision not cited by Mr Gupta, the Court of Appeal examined the power of the Family Court to set aside a consent order made in financial remedy proceedings before FPR r 9.9A came into force. The decision of the Court of Appeal in Norman v Norman concerns an application for permission to appeal but the Court of Appeal, in refusing permission to appeal gave permission for the decision to be cited pursuant to the Citation of Authorities: Practice Direction [2001] 1 WLR 1001. On the question of the power of the Family Court to revoke an order, in line with the decision of the President in S v S, the Court of Appeal in Norman v Norman determined that the Family Court has, by virtue of section 31F(6)(a) of the Matrimonial and Family Proceedings Act 1984 and FPR r 4.1(6), a general power to rescind or revoke an order. Within this context, King LJ noted at [49] that:

“As the new FPR r 9.9A provides specifically for the power of the court to set aside a financial remedy order (as opposed to any other type of order) then it rather than FPR r 4.1(6) should, as of 3 October 2016, be invoked where such relief is sought. FPR r 4.1(6) will continue to govern any other applications to set aside which are governed by the Family Procedure Rules.”

It would appear from context that the “other applications” to which King LJ stated FPR r 4.1(6) would apply were applications for orders other than financial remedy orders, rather than just financial remedy orders made before 3 October 2016.

It will be apparent that both the decision of the President in S v S and the decision of the Court of Appeal in Norman v Norman concerned the ambit of the jurisdiction of the Family Court to set aside financial remedy orders and the extent to which that can be achieved by way of an application to set side made to the judge at first instance rather than by way of an appeal, and not the question of the nature or ambit of the jurisdiction of the High Court in this regard or the applicable procedures therein. Sharland v Sharland however, concerned applications to set aside made in the High Court.

Next, Mr Gupta cites the case of Re F (Children) [2017] 4 WLR 4. That case did not concern a return order made under the inherent jurisdiction of the High Court, but rather a return order made pursuant to the 1980 Hague Convention. The appeal concerned the decision of Mr Jonathan Cohen QC (as he then was) sitting as a judge of the High Court in Re F (A Child)(Return Order: Power to Revoke) [2015] 1 WLR 4375, in which the court determined that it had jurisdiction under FPR r 4.1(6) to revoke a return order made in proceedings under The Hague Convention 1980. It is plain from the judgment at first instance in Re F (A Child)(Return Order: Power to Revoke) that the parties agreed that the court had jurisdiction to set aside a return order made under the Hague Convention and that the judge proceeded on the basis of that agreed position. In circumstances where the point had not been put properly before it, the Court of Appeal declined in Re F (Children) to determine the nature and extent of the power of the High Court to set aside its own return orders made pursuant to the 1980 Hague Convention, if any. However, in articulating this position, Black LJ (as she then was) observed as follows at [26] and [27]:

“[26] It was conceded by the father before Mr Cohen QC that, in an appropriate case, the High Court can set aside a return order made under the 1980 Hague Convention and Mr Gupta QC did not seek to argue otherwise on appeal. Had he sought to do so, he would, of course, have had to surmount the obstacles which stand in the way of those who seek to raise a new point only on appeal (see, for example, the notes in Civil Procedure 2016, vol 1, para 52.8.2). As it was the case of both the mother and L that the judge had power to make the order that he did, we therefore received no submissions questioning that proposition. An argument to the contrary was mounted in In re H (A Child) [2016] EWCA Civ 988 (see paras 9–11) but, for the reasons set out in paras 12–14 of In re H, it was unnecessary to rule upon it, the order in that case being a wardship order which could be varied by the first instance court if the child's welfare so required.

[27] In the absence of comprehensive submissions, I would be reluctant 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 one reported example of the exercise of such a power is the decision of Mostyn J which was cited by Mr Cohen QC in this case, namely In re F (A Child) (Return Order: Power to Revoke), where Mostyn J relied upon FPR r 4.1(6). However, although I am not prepared to hazard a view as to whether the power actually does exist, I do acknowledge that In re F and the instant case show 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. The Court of Appeal is not well suited to hearings of the type that would be required as, for example, Thorpe LJ explained in the case of Walley v Walley [2005] EWCA Civ 910; [2005] 3 FCR 35 at para 14. Although every effort is made to accommodate Hague 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.”

I turn next to two cases not cited by Mr Gupta, one because it had not been decided at the time this matter was heard. The first is the case of In Re H (Child) [2016] EWCA Civ 988 referred to by Black LJ (as she then was) in Re F (Children), which did concern return orders made under the inherent jurisdiction. Specifically, the Court of Appeal was concerned with an appeal against an order made by a Deputy High Court judge refusing to set aside on the grounds of duress and a change of circumstances a return order made under the court’s inherent jurisdiction by consent. The question of the court’s jurisdiction to set aside such an order having regard to terms of s 17(2) of the Senior Courts Act 1981 arose but was not one the Court of Appeal was willing to deal with in circumstances where the determination of the point lacked any practical consequence in the context of the case. However, Black LJ made the following observations which are pertinent to the question that is now before me:

“[13] In any event, I am not persuaded as to the merits of the father's arguments which, it seems to me, fail to recognise what Judge Bromilow's role really was at this stage in the proceedings. By the time that the mother's application reached Judge Bromilow, it was characterised as an application to set aside the July consent order. It is perhaps not surprising that this characterisation generated arguments about whether a first instance judge is entitled subsequently to revisit his own decision or that of another judge of the same level, and as to the technicalities that might attend an application to set aside in the High Court. However, an unfortunate consequence of this focus upon technicalities appears to have been that the true nature of the court's task was obscured. Judge Finnerty's order was made in the context of wardship, and A's best interests were therefore the determining consideration on that day. To use the terminology adopted by Mr Williams QC (who with Ms Jacqueline Renton represented A in the appeal) in his oral submissions, it was a welfare order. The parents' cross-applications which ultimately came on for trial before Judge Bromilow were also made within the wardship proceedings. The situation was not, therefore, the same as that in proceedings under the 1980 Hague Convention, and authorities dealing with such proceedings (as does Re M (Abduction: Undertakings)) are not of assistance. Equally, reliance on Re M (Abduction: Non-Convention Country) may not be helpful either because, although this was not a Hague Convention case, the court still applied Hague Convention principles. That would not happen now as, in Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40 [2005] 2 FLR 802, the House of Lords held that the outcome must be dictated by the welfare of the child and that the specialist rules and concepts of the Hague Convention should not be applied by analogy in non-Convention cases.

[14] Once the return order in relation to A is seen as a product of the court's normal welfare jurisdiction in wardship, it seems to me that it should be evident that if the child's welfare so required, the court could revisit it. The idea that it would not be able to do so at all (because only the Court of Appeal could handle the matter), or not be able to do so unless strict criteria for setting aside an order were satisfied, runs counter to the purpose of wardship, which is designed to respond flexibly to the best interests of the child at any given time.

[15] Although counsel for the father (Mr Vine QC, who did not appear below, and Mr Bennett, who appeared in front of Judge Bromilow) seemed in writing to be advancing the case that Judge Bromilow simply had no jurisdiction to set aside the return order, after discussion during the appeal hearing, it became apparent that the argument was, in fact, more one of form than of substance. Mr Vine conceded that if the mother had made an application for variation of the July order, he could not have submitted that the court was not entitled to deal with it. His argument was based upon that not having been the form of her application. In fact, however, the mother did seek a variation of the return order (see the extract from her application form at paragraph 4 above), albeit that she confined the basis upon which this variation was sought. Furthermore, Judge Bromilow would have been entitled to vary the order of his own motion if A's best interests required it. Proceedings under the inherent jurisdiction of the High Court in relation to children are "family proceedings" (section 8(3)(a) of the Children Act 1989) and, in family proceedings, the court can make a section 8 Children Act order even if no application has been made (section 10(1)(b) ibid). And if there is any question as to whether the order sought by the mother amounted to a section 8 order, the judge was, in my view, entitled to act of his own motion in relation to his ward's best interests. Whether it is appropriate, in the exercise of these powers, to do anything other than enforce the original consent order will, of course, always depend upon the circumstances of the individual case. For example, if a party were to return to court the day after the order, unable to point to any significant changes that had taken place, he or she could not normally expect to succeed in displacing the previous day's order, and could anticipate his or her application being dispatched in very short order. But the reason why a subsequent application such as this will have foundered immediately is because that is what is required in the best interests of the child, and not because the court had no jurisdiction to entertain it.”

The second authority is the recent decision of the Court of Appeal in Wilmot v Maughan [2017] EWCA Civ 1668, handed down on 27 October 2017, in which the court was concerned with the question of whether the judge wrongly refused to vary or revoke previous orders which permitted service by email. Within the context of the issue raised in this case, and whilst the Court of Appeal was not in Wilmot v Maughan required to determine the question of jurisdiction, it is useful to set out the following observations of Moylan LJ on that topic in full:

“Application to Set Aside

[82] In order to deal with this issue, I need first to refer to the legal framework in respect of: (a) briefly, the court's power, at first instance, to vary or discharge orders made previously in the proceedings; and (b) the principles applicable to the exercise of any such power.

[83] (a) As referred to above, although this issue was not addressed by the parties we did not consider it necessary to request them to do so as the point does not require determination. However, as the judge decided that he had power to vary or discharge orders pursuant to FPR r.4.1(6) and section 31F(6) of the 1984 Act, I consider it appropriate to make brief observations with the obvious caveat that these are made in the absence of submissions.

[84] Questions about the extent of the High Court's power to vary or revoke orders were raised, but not decided, in Re H (Child) [2016] EWCA Civ 988 (paragraphs 9-14) and in Re F (Children) [2016] EWCA Civ 1253 (paragraphs 26-27). The issue was also considered by Sir James Munby P, sitting at first instance, in S v S [2015] 1 WLR 4592. One of the principal questions raised relates to the effect of section 17 of the Senior Courts Act 1981 which provides that: "Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise". The FPR were made under a number of statutory provisions but not, it appears, section 17(2).

[85] I would also note, in passing, that section 17 deals with applications after any cause or matter or any issue has been tried. This can be contrasted with FPR r.4.1(6) (and the equivalent CPR r.3.1(7)) which gives the court power to vary or revoke orders made pursuant to a power "under these rules". Although, in Roult v North West Strategic Health Authority [2010] 1 WLR 497, Hughes LJ (as he then was) said that r.3.1(7) was "not expressly confined to procedural orders" (paragraph 15), it, and FPR r.4.1(6), clearly apply to such orders.

[86] In addition, I would note that section 31F(6) of the 1984 Act applies only to the "family court" and not to the High Court. Accordingly, to be within its scope, a judge would have had to be sitting in the family court.

[87] However, for the purposes of this judgment, I will assume that the judge was right to decide that he had power to vary or revoke both procedural and substantive orders made previously in these proceedings.”

Finally, with respect to this survey of the relevant law, if the court accepts there is jurisdiction to set aside a return order made under the inherent jurisdiction by another judge of the Division where no error on the part of the court is alleged and has power to exercise that jurisdiction, Mr Gupta submits that the principles to which the court should have regard when deciding to exercise that power are well established. Mr Gupta submits that such a power is exercisable where the court is satisfied that there has been, as Mr Gupta put it, “fraud, mistake, a significant change of circumstances or material non-disclosure”. Mr Gupta submitted that an order setting-aside a return order on these grounds would be a “rare animal”.

The civil authorities dealing with CPR r 3.1(7) examine the circumstances in which the court can set aside an order pursuant to that provision. In Tibbles v SIG Plc [2012] EWCA Civ 518, taking into account the decisions of the Court in Collier v Williams [2006] 1 WLR 1945, Edwards v Golding [2007] EWCA Civ 416 and Roult, and noting that the authorities all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise, the Court of Appeal concluded that the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated. The Court of Appeal in Tibbles v SIG Plc further noted that it would, however, be dangerous to treat the statement of these primary circumstances as though it were a statute, and that there is room for debate in any particular case as to whether and to what extent a misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In this context, the court considered that where the facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that must be still more strongly the case where the decision not to mention them is conscious or deliberate. Once again, it is important to note that each of these authorities emphasises that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion, with the proper way of challenging the order being by way of appeal. Drawing all these matters together, in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 the Court of Appeal held as follows at [44]:

“If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under CPR r 3.1(7). The circumstances in which the latter discretion can be exercised were considered by this court in Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) [2012]1 WLR 2591. The court held that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion. The discretion might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order was made; (ii) where the facts on which the original decision was made had been misstated; or (iii) where there had been a manifest mistake on the part of the judge in formulating the order. Moreover, as the court emphasised, the application must be made promptly.”

Within this context, in In re F Mostyn J considered that a significant change of circumstances or non-disclosure must be demonstrated to justify the setting aside of a return order made under the 1980 Hague Convention absent error on the part of the court. In Norman v Norman King LJ held that when considering an application to set aside under FPR r 4.1(6) it was appropriate to interpret the scope of FPR r 4.1(6) having regard to the decisions concerning CPR r 3.1(7) and that, in this context, FPR r 4.1(6) should be interpreted as being limited in its scope in the same way as CPR r 3.1(7). In support of this conclusion King LJ noted the decisions of the Supreme Court in Sharland v Sharland and In re L (Children) (Preliminary Finding: Power to Reverse), to which I have already referred, and the decision of the Supreme Court in Thevarajah v Riordan [2016] 1 WLR 76. Within this context, King LJ concluded that an application to set aside a financial remedy order made pursuant to FPR r 4.1(6) will be considered by reference to the Tibbles criteria against the backdrop of the desirability of finality in litigation, the undesirability of permitting litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal. Finally, within the context of the question before this court with respect to return order made under the inherent jurisdiciton, I also again recall the observations of Black LJ (as she then was) in Re H (A Child) with respect to the exercise of the court’s jurisdiction to revisit orders made under the inherent jurisdiction:

“Whether it is appropriate, in the exercise of these powers, to do anything other than enforce the original consent order will, of course, always depend upon the circumstances of the individual case. For example, if a party were to return to court the day after the order, unable to point to any significant changes that had taken place, he or she could not normally expect to succeed in displacing the previous day's order, and could anticipate his or her application being dispatched in very short order.”

With respect to the period over which any change of circumstances should be considered, Mr Gupta conceded that the relevant period would be that between the date of the original order and the hearing of the application to set aside. This accords with observations made by the Supreme Court in Thevarajah v Riordan.

Having undertaken the foregoing detailed review of the authorities, I have decided that a High Court judge does have power under FPR r 4.1(6) to set aside a return order made under the inherent jurisdiction by another High Court Judge where no error of the court is alleged but where there has been a change of circumstances, or a material non-disclosure, that goes to the welfare of the child. However, on the evidence before the court, I am also satisfied that that power should not be exercised in this case. My reasons for so deciding are as follows.

Whether, as a matter of law, an order made by the court can be reviewed, whether it should be reviewed and which court should determine the application to review it, must be determined in the context in which that order was made. In the context of the issue raised in this case it is important to separate out (a) the question of whether there is jurisdiction to review and, if appropriate, set aside the order in question absent any assertion of error on the part of the court making the order, (b) if there is such a jurisdiction, the question of whether the court seised of the application to review, and if appropriate, set aside the order has been given power to exercise that jurisdiction and (c) the question of the appropriate test for exercising the jurisdiction.

In reaching a conclusion on each of these issues, it is further vital that the court must have proper regard to the nature of the jurisdiction under which the original order was granted and the nature of the original order itself. In this case, the court is dealing with a return order made under the inherent jurisdiction of the High Court and, accordingly, an order the criteria for the making of which is the child’s best interests considered as the court’s paramount concern. Further, as regards the nature of the order itself, in my judgment a return order made under the inherent jurisdiction may properly be characterised as injunctive and interlocutory in character, in that it seeks to compel a parent to return the child to the jurisdiction of his or her habitual residence pending final trial of the substantive welfare issues before the court.

Turning then within that context to the first question of whether there is jurisdiction per se to review and, if appropriate, set aside a return order made under the inherent jurisdiction of the High Court absent an error on the part of the court, as Black LJ (as she then was) made clear in Re H, it would be startling if an order made under the inherent jurisdiction in relation to a child’s welfare could not be the subject of review and set aside if appropriate in cases where no error of the court is alleged but where there has been a change of circumstances that affects the welfare of the child. That this is the case is further illuminated by the fact that there is such a well-established common law jurisdiction in respect of financial remedy orders. It would be truly remarkable if the High Court had a common law jurisdiction to review an order relating to money where no error of the court is alleged but did not have such a jurisdiction with respect to orders governing the welfare of children. Further, there is plainly a principle basis for such a jurisdiction, particularly where the order in question is an interlocutory order. Again, as Black LJ made clear in Re H, the court remains seised of the child’s welfare during the course of proceedings and, accordingly, must have jurisdiction to make, vary or set aside orders as required by the child’s best interests as the courts paramount consideration. Finally, I am reinforced in my conclusion by the observations of Baroness Hale in In re L (Children) (Preliminary Finding: Power to Reverse) in the context of revisiting findings of fact in the light of later developments, that not to have such a power would be inconsistent with the overriding objective. Within this context, I am entirely satisfied that there is jurisdiction per se to review and, if appropriate, set aside a return order made under the inherent jurisdiction of the High Court absent an error on the part of the court.

Having established that there is jurisdiction to review and, if appropriate, set aside a return order made under the inherent jurisdiction of the High Court absent an error on the part of the court, I turn to the second question of whether the High Court has power to exercise that jurisdiction. It is this question that became so bogged down in a procedural quagmire when asked in relation to the appropriate procedure for exercising the identified common law jurisdiction to set aside financial remedy orders where no error of the court was alleged (see the comments of Munby J (as he then was) in L v L [2008] 1 FLR 26). In this case, the question is can the review of the return order in question be undertaken only by way of an appeal to the Court of Appeal having regard to the requirements of s 17(1) of the Senior Courts Act 1981, or can it be undertaken by the first instance court pursuant to a power conferred by the provisions of FPR r 4.1(6), notwithstanding that FPR r 4.1(6) was not made pursuant to s 17(2) of the 1981 Act.

Whilst the terms of s 17(1) of the Senior Courts Act 1981 are clear in requiring any application for a new trial of, or to set aside a verdict, finding or judgment in any cause or matter, or any issue in any cause or matter, that has been tried in the High Court to be heard and determined by the Court of Appeal except where rules of court made in pursuance of s 17(2) provide otherwise, and whilst it is plain that FPR r 4.1(6) is not made pursuant to s 17(2) of the 1981 Act, I am satisfied that the review of a return order made under the inherent jurisdiction and, if appropriate, the setting of the order aside, can be undertaken by the High Court pursuant to the provisions of FPR r 4.1(6). In my judgment, a number of factors support such a conclusion:

For all these reasons I am satisfied that, in furtherance of the jurisdiction to review and, if appropriate, set aside a return order made under the inherent jurisdiction of the High Court absent an error on the part of the court, FPR r 4.1(6) empowers the High Court to consider such an application, notwithstanding the provisions of s 17 of the Senior Courts Act 1981.

Having established the jurisdiction and the power of the High Court to deploy it, I turn finally to the manner in which the jurisdiction should be exercised. In the context of the order in question being one which concerns the welfare of a child, I am mindful of Black LJ’s observation in Re H (Child) that to adopt strict criteria for setting aside an order concerned with the welfare of a child would run counter to the purpose of a welfare based jurisdiction designed to respond flexibly to the best interests at any given time. I also bear in mind the observation of Baroness Hale that the power must be exercised judicially and not capriciously and in accordance with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved. Finally, I also bear in mind the repeated warnings in the authorities on CPR r 3.1(7), echoed in the authorities concerning FPR r 4.1(6), that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion.

Within the context of applications to set aside a return order made under the inherent jurisdiction of the High Court where no error of the court is alleged, whilst considerations of welfare will mean the discretion is a relatively wide one, the need to avoid litigants having two bites at the cherry, the need to avoid undermining the concept of appeal and the overriding objective means that the exercise of discretion on such an application will be constrained to a certain extent. In particular, in addition to the caution expressed in the authorities dealing with CPR r 3.1(7), the need to deal with the case justly pursuant to the overriding objective in FPR r 1.1 requires that a party is not able to circumvent the appellate process.

In these circumstances, in order to succeed in an application to set aside a return order made pursuant to the jurisdiction of the High Court, I am satisfied that the applicant must be able to demonstrate a change of circumstances, or material non-disclosure, relevant to the evaluation of the welfare of the subject child such as to justify the setting aside of the order as being in the child’s best interests.

Applying the foregoing legal principles to the particular facts of this case, I am satisfied that the mother’s application to set aside the return order made by Francis J on 14 September 2017 should be dismissed.

I am not satisfied that between 14 September 2017 and the date of this hearing that there has been a change of circumstances such as to justify setting aside the return order as being in the children’s best interests. Indeed, it is apparent on the evidence before the court that there has been no substantive change in the position in the little over three weeks since the matter came before Francis J, on which date he was satisfied that in the circumstances then before him a return order was in each child’s best interests.

Taking each of the matters relied on by Mr Gupta as constituting a change of circumstances, I am not satisfied that the assertion that the children have expressed a wish not to go to live with their father pursuant to the order of Her Honour Judge Harris is a change of circumstances since 14 September 2017. Indeed, the letter from the mother’s solicitors dated 13 September 2017 that was before Francis J, and the Skeleton Argument of Mr Gupta attached to it, made explicit the assertion that the children had expressed views in writing in favour of remaining with their mother in North Carolina and against returning to their father, as well as asserting the Children’s Guardian had not taken appropriate steps to ascertain their up to date views. That is the position at this hearing also.

I am likewise not satisfied that the fact that the mother’s application for permission to appeal has been listed for an oral hearing constitutes a relevant change of circumstances. Rather, the basic position that pertained at the hearing on 14 September 2017 is that which pertains at this hearing. Namely, the mother has applied for permission to appeal the order of Her Honour Judge Harris but that application for permission has not yet been determined.

Finally, with respect to the assertion that the children are now in school, settling in the United States and becoming integrated into family life in that jurisdiction and the assertion that the father has determined not to go to the United States and is remaining in England pending the determination of the mother’s appeal, this was the position on 14 September 2017 and was made clear to Francis J in the documents supplied to him.

Within this context, I accept Ms Giz’s submission that, far from a change of circumstances, the position has been largely static since the date the return order was made. Moreover, to allow the last two matters to constitute a change of circumstances such as to justify setting aside a return order would be to allow the mother to take advantage of her express breach of the order of Her Honour Judge Harris, and of the return order, by leveraging those breaches into a change of circumstances which is then used to justify setting aside the very order with which she has failed to comply.

I am likewise satisfied that there was no material non-disclosure on 14 September 2017. It was unfortunate that the circumstances I have described earlier in the judgment conspired to mean that the mother was not before the court by way of telephone on 14 September 2017. However, there is no evidence that this resulted in the non-disclosure of material relevant to the application before the judge. As I have recounted, the mother’s case and the matters she relied on as justifying the dismissal of the application for a return order were set out in the letter dated 13 September 2017 and the documents attached thereto. Whilst these are matters elaborated further in her statement in support of this application, each of those matters was before Francis J by way of those documents and the information provided to Francis J by Ms Giz.

I of course acknowledge that the mother also complains more widely in this context that she was denied her “right of representation” at the hearing on 14 September 2017 and also seeks to set aside the return order on that basis. However, I am satisfied that that is a matter that plainly falls outside the purview of an application to this court to set aside the return order. The mother’s complaint in this respect amounts to an assertion that the hearing on 14 September 2017 was unfair and in breach of her Art 6 rights. Such an assertion goes to the manner in which the court dealt with the application and, accordingly, is properly the remit of the appellate jurisdiction were the return order of 14 September 2017 to be the subject of an appeal.

In the absence of a change of circumstances since the date on which Francis J determined it was in the children’s best interests for a return order to be made, or demonstrable material non-disclosure on that date relevant to the children’s welfare, I am not satisfied that there is any proper basis to conclude within the context of an application to set aside that it is in the children’s best interests for the return order made by Francis J on 14 September 2017 to be set aside.

Further, it is important in this context also to consider the circumstances in which the mother makes her application to set aside the return order. As far as I can ascertain, the mother does not dispute that Her Honour Judge Harris had jurisdiction to make the order she did on 9 August 2017. That order has not been stayed and whilst the mother has applied for permission to appeal that application has not yet been determined. Within this context the mother continues to be in breach of the order of Her Honour Judge Harris. Further, the mother remains in breach of the return order that is the subject of this application. She has not appealed that order as having been improperly made.

In this situation, to set aside the order absent a change of circumstances or material non-disclosure would amount not only to an appeal of the return order by the back door, but would also frustrate the operation of the order of Her Honour Judge Harris, which order remains in force and has not been stayed pending determination of the mother’s application for permission to appeal that order. In short, to set aside the return order absent a change of circumstances or a material non-disclosure would be to allow the mother to have “two bites at the cherry” and would act to undermine the concept of appeal.

I accept that, in the somewhat unusual circumstances of this case, leaving the return order in place will leave the children liable to be returned to a jurisdiction that, even on the father’s case before Her Honour Judge Harris, they did not expect to return to, possibly against their expressed wishes and feelings. I further note within this context Mr Gupta’s submission regarding the conceptual difficulties in characterising the mother’s actions as a retention in a foreign jurisdiction and his submission that, in any event, the more appropriate way to proceed would have been an application under the 1980 Hague Convention in the United States. However, these matters were known on 14 September 2017 and do not constitute a change of circumstances or a material non-disclosure for the purposes of the application before this court. Insofar as they amount to criticisms of the basis on which the return order was made on 14 September 2017, they are properly the remit of the appellate jurisdiction were that order to be the subject of an appeal.

For the reasons I have given, I am satisfied that this court has power under FPR r 4.1(6) to hear and determine the mother’s application to set aside the return order made by Francis J on 14 September 2017. Having considered the application, and for the reasons set out in this judgment, I dismiss it.

That is my judgment.