KF (Hague Return Order – Set Aside – Test for Fundamental Change), Re

This extempore judgment is going to be a fairly summary one. The application which I have been dealing with this afternoon relates to a little girl, KF, who was seven on 30 April 2018. She has been the subject of proceedings pursuant to the 1980 Hague Child Abduction Convention brought by her father, KN. Respondent is her mother KR, and KF was joined at some point to the proceedings herself and acts by a guardian who is also represented today.

The first application which I need to deal with this afternoon is the mother’s application which was issued I think yesterday, or perhaps Tuesday, which was seeking to set aside the order which had been made by Mr Goodwin KC sitting as a Deputy High Court judge on the, I think the order itself was 27 August, it followed a judgment delivered I think on 26 August.

In that DHCJ Goodwin he concluded that the mother’s exception to the return of KF under Article 12 to Australia was not met because although the risk on its face of a return was met, a package of protective measures were sufficient to ameliorate the risk so as to reduce it below the Article 13b threshold. The judgment of Mr Goodwin is within the bundle at B54 and it sets out a detailed analysis of the background to the family’s life, the breakdown of the marriage, the circumstances in which the mother and KF came to England and a detailed analysis of the 3 limbs of the mother’s 13b defence.

The three strands of the defence were domestic abuse related issues, the possibility of the mother being persecuted by the their church, of which the family are members, mother no longer, and thirdly, the risk arising from the mother’s mental health and the risk of it deteriorating so significantly that it would create a grave risk of harm to KF or otherwise be intolerable.

Mr Goodwin took all three of those components together and concluded that the evidence substantiated genuine risks in relation to domestic abuse. Less so, I think, in relation to the risks of their church and real risks in relation to the deterioration of the mother’s mental health based on the opinion of Dr McClintock, who in particular had identified the risk of a serious deterioration I think particularly if exposed to the sorts of behaviours that the mother had experienced before, or pressures from their church.

I have read that judgment, and I do not propose to set out lengthy extracts of it here, but I have in mind what Mr Goodwin records in that judgment in particular about the mother’s mental health, the risks of deterioration of it. There is clearly a history of mental health difficulties in relation to the mother which were present in Australia, and which caused Dr McClintock to reach the conclusions that he did, and for Mr Goodwin to accept his evidence.

Within the conclusions of Mr Goodwin, he, as I say, accepted in relation to the mother’s mental health that there were genuine risks of a deterioration. At paragraphs 55, 56 and 57 Mr Goodwin sets out, Dr McClintock’s I think primary conclusions, and at paragraph 59 Mr Goodwin says that in effect he identifies a grave risk of harm arising from paragraph D:

“The likelihood that the mother’s mental health would significantly deteriorate if on a return to Australia the father’s contact and communication with her was unrestricted. This would in turn expose KF to the risk that her mother would be emotionally and psychologically unavailable to her, or even if a psychiatric admission were required, physically absent. In assessing the gravity of the risk to KF, I note that the mother has always been her primary carer and she would likely suffer emotional harm if separated, albeit her best interest might require such separation in the event of her mother’s significant mental health deterioration”.

In dealing with whether that risk could be ameliorated, Mr Goodwin ultimately concluded that with a package of protective measures and with the financial independence that the mother would have, and the confidentiality in terms of her address and whereabouts that she would have, that the risk of a deterioration was one which fell below the Article 13B threshold when protective measures were in place. At paragraph 74 he said:

“I am not satisfied however that the mother’s mental health would, if the protective measures outlines in this judgment were implemented, deteriorate to the point at which KF would suffer physical or psychological harm or otherwise be placed in an intolerable situation”.

He said:

“The critical point here is that the mother would not be returning to the same circumstances she left last year. She would have a far greater degree of financial autonomy, and subject to the orders made by the Family Court of Protection than she had before”.

The other parts of the judgment refer to the fact that the mother’s claim for asylum had been rejected, and she had no prospect of remaining here, that she had the means to fund specialist therapy which was something that Dr McClintock had recommended, and he said that “In my view, the availability of medical and therapeutic help would be sufficient to reduce the risk of a catastrophic deterioration. However, distressing a return order would be for her, it would bring the certainty that Dr McClintock advises is a necessary precursor to effective treatment”.

And he said, paragraph 77:

“If required to return, I anticipate that the mother would, in KF’s interests, take all necessary steps to address her own mental health fragilities. Although there remains a risk to the mother’s mental health even with protective measures, I consider that such risk would be significantly mitigated by the availability of the measures and the likelihood that the mother would engage in treatment”.

So it was on that basis Mr Goodwin ordered a return, subject to a package of protective measures which are contained within I think paragraph 10 of his order. That order is clearly predicated upon the expectation that KF would remain in the care of the mother, indeed, as I have already averted to, he concluded that a separation of KF from her mother would result in emotional or psychological harm, and so the whole of the structure of the return is in the expectation that the mother would be returning with KF and that the matter would resume in the Australian courts who would be in a position to then deal with issues relating to any protection that was required for the mother and/or KF.

The date for the return was 21 September. That was not complied with, and on 23 September the mother issued an application to set aside the return order. At about the same time, I think probably on the same day, the father issued an application to enforce the order.

It had by then emerged that the children’s passports, or KF’s but I also think KA’s and the mother’s, were not with the tipstaff as had been supposed at the time the order was made, but in fact were held by the Home Office still pursuant to the mother’s application for asylum. And so the return could not have been effected by 21 September because the passports were not available, and so the father’s application primarily focused on enforcing and varying the order so that the passports held by the Home Office could be released by the Home Office to the applicant’s solicitors. As I understand it those passports are still in transit between storage and wherever they can be collected from.

The basis of the mother’s application to set aside the return order effectively relies on two grounds, although the first is the primary focus of the evidence which she has included within her statement, although the second perhaps emerges from it, and was expanded upon by Mr Gration.

The first basis on which she says there has been a fundamental change in the basis on which the return order was made, is that she says that her mental health has deteriorated very dramatically since the return order was made in a way which is well beyond the parameters contemplated by Mr Goodwin, such that, and this leads onto the second limb of her application to set aside, such that she is not able to return to Australia because her mental health is such that she could not board the plane and accompany KF to Australia. And so she says that given the return is predicated upon her returning with KF, that her inability to return is another fundamental change since the order was made.

Her evidence is contained within a statement which is now at page C312 of the bundle, which again I have read, and in which she says that she remains devastated by the outcome, her whole life blown to pieces, and she says that her mental health has taken a significant and tremendous decline. She says:

“I do not say this lightly as I am realistically now in a position where I am having the darkest of thoughts. This has included suicide. I am struggling to function on a daily basis”.

She sets out across the landscape of that statement that she just cannot imagine returning to Australia and infers, although I do not think specifically says, that her health now precludes returning to Australia although I do not think she uses the specific expression that she will not return to Australia, but that is the import of what she says is the impact on her of the deterioration in her health.

She says that she has sought medical assistance to deal with this deterioration in her mental health, but she has found that tremendously difficult she says, in large part due to significant cuts that the NHS is facing, and constrained services. She sets out how she says she has made multiple attempts, not possibly on a daily basis, although certainly on a very regular basis, to secure medical help, including on 10 September she says she spent all day trying to be seen only to be turned away, but was ultimately seen at an urgent medical care clinic on 12 September, but was referred back to her GP and told that she could get an appointment. I think that is with the GP.

She says that on 11^th and 12^th she did what she could to liaise with the GP but struggled to get any response. She says she repeatedly considered attending A&E and also tried a walk-in centre, but she says few people seem to know what to do or find any system for mental health infrastructure which sounds a little surprising given the focus on mental health and the resources which are available, including The Samaritans, of course.

She says that on 15^th she was referred by her GP to receive specialist psychiatric treatment. They were unable to increase her antidepressants and anxiety medication as she was on the highest possible dose. That should be read in conjunction with the letter which is exhibited from her GP, dated 15 September, which says, “Dear Doctor”, this is the referral to consultant speciality consultant psychiatrist hospital clinic, private hospital. So I think this is the referral letter that she was given.

“Dear Doctor, Thank you for seeing KR with regard to her very complex family history. Kindly note the following history and advise further. Reasons for referral: depression, stress. Please give your opinion”.

Then it sets out the consultation. “Patient tearful because her younger daughter facing extradition on coming Sunday as per court ruling. No self-harm thoughts”, which seems significant given that the central point that the mother, or one of the central points that the mother raises is that her health has deteriorated to the extent that she is genuinely considering suicide.

“Wants to see private psychiatrist and requesting referral letter. Living in temporary accommodation. No other concern. D”, diagnosis I think, “Depression/Stress? P: reassurance given. Private referral done. Return PM. Reassurance given. Medications”. I think there is reference to an antidepressant. So that was 15 September when the mother sought a referral to a private psychiatrist which I infer from the fact that there is no reference to her having seen a private psychiatrist that she has not yet seen one.

She had said that she was referred to receive specialist psychiatric treatment at paragraph 11, which was a private psychiatrist, but she goes on to say at paragraph 12 ultimately as there was no other option I sought private medical assistance, and saw a doctor provided by DocTap on 16 September, and the notes which emanated from that consultation are also exhibited. The doctor who she saw seems to have been probably another GP rather than a psychiatrist from looking at the letters of qualification.

That includes:

“Reports significant decline in mental health since recent adverse court judgment. Describes current state as a mental health crisis. States suicidal ideation”, which given the day before the doctor recorded no self-harm thoughts is self-evidently inconsistent, “And very low will to live. Is worrying about the court order and how she feels it is an unfair ruling and is negatively impacting her mental health. Feels disappointed, helpless and frustrated at the judgment she has been given to return to Australia where she has no support and had fled. On escitalopram. Reports being at maximum dose. Long history of antidepressant use”.

That, as I say, is an extract from the notes which appear at page C319 from KR’s GP, and it commences:

“Seeking a letter regarding declining current mental health for ongoing court proceedings about a return order. Arrived in the UK 15 months ago. Limited continuity of care from NHS GP. Difficulty accessing psychiatry due to waiting lists. Has an NHS GP referral letter for access to private psychiatry but cannot secure an appointment at short notice”, again, which seems something of a surprise with private referrals.

“Advice included attend A&E urgently if you feel at risk of harming yourself. If you develop thoughts of harming yourself, feel unable to stay safe or are in immediate danger, go to A&E or call 999”. The doctors felt unable to offer a letter setting out what their views were and gave further advice including calling the Crisis team, The Samaritans, Mental Health Matters, et cetera.

So that was 16 September. On 21 September, the mother says that in somewhat florid language that KA her 18-year-old daughter had been playing double agent. I think KA has now left the mother’s home and she says the same day she was so overwhelmed she attended A&E and was admitted and seen by a mental health specialist at Wexham Park Hospital.

She said she made it very clear that she was contemplating her own life and was referred for urgent therapeutic assessment with their overnight emergency team, that she was admitted overnight and was discharged the following day. Although there seems to be a day missing somewhere as that starts on the 21^st, but says she was discharged on 23September, but I think she was in the hospital for one night and was discharged.

There is no discharge letter from that admission and self-evidently the hospital did not feel that she met the threshold for a section 2 admission for assessment under the Mental Health Act, but it is not clear actually what advice she was given then or what further referrals or treatment were recommended.

That I think is the most recent evidence of her seeking medical assistance, but she goes on to say, and I am joining this up with what I said at the beginning, she said:

“The situation can scarcely be bleaker for me or KF. I cannot even comprehend the possibility of returning to Australia. There has been a tremendous, real deterioration in my mental health, and I simply cannot find a way of overcoming this”.

She said:

“There has been a tremendous, real deterioration in my mental health and I simply cannot find a way of overcoming this. I am barely able to leave the house let alone contemplate the idea of returning to Australia, become medically fit to fly or travelling to Australia, let alone dealing with what is waiting for me and KF there”.

I note that the medical evidence which has been produced as far as I can ascertain does not contain advice that the mother is not medically fit to fly.

She says:

“Whilst I thought I was holding it together somewhat following the decision of this court, my mental health has taken a real nosedive. I do not think it would be as bad as it is at the moment. It is not an understatement for me to say that I have seriously considered ending my own life, solely as a result of the order requiring KF’s return”.

Mr Gration expanded on the reasons for seeking a set aside, and said that the first stage of the approach set out by Moylan LJ in Re B (Children) (Abduction: Consent: Oral Evidence) (Article 13(b)) [2022] EWCA Civ 1171 I think was met on the basis that there was evidence of a fundamental change in the circumstances in which the order was made, which justified the court in allowing the application to set aside to proceed further, and to obtain further evidence which would enable the court to determine stage 3 of whether the order itself should be set aside and stage 4 in re-determining the application if the order was set aside.

And in particular Mr Gration’s case was put on the basis that the evidence contained within the mother’s statement provided an evidential platform which justified the obtaining of a further expert report and updated expert report from Dr McClintock to advise on the mother’s current mental health.

The submissions in relation to the separation of the mother and KF need little elaboration given the return is predicated upon there being no separation of her and so if the mother were in fact not to return that would amount to a fundamental change which would certainly require further consideration of any arrangements for return.

The position of the father was that the mother’s statement and the late application is in effect a further example of litigation strategy designed to delay the outcome of these proceedings and if that one dissects the statement of the mother, that it is largely reliant on self-reporting.

And so far as it is reliant on accepting her self-reporting, it lacks the sort of supporting evidence which one might expect were its contents a true reflection of what had happened in that there are no documentary footprints of the numerous steps which the mother says she has taken, nor in particular is there a discharge letter from the admission which took place, on or about 21^st, or which is said to have taken place on or about 21 September.

Ms Kirby on behalf of the father says that it is hard to understand how a discharge summary or some form of referral letter is not available which references what the hospital’s conclusions were in relation to the mother given what is known of general NHS practice. And so Ms Kirby on behalf of the father says that the first stage of the test has not been met in any shape or form and that absent evidence of a fundamental change in circumstances there is no basis for continuing with stages 2, 3 or 4.

The father’s position in relation to the alleged fundamental change of the mother not returning is that at this stage the father still supports the continuation of a return in the company of the mother with a return date with effectively the current order remaining in place being rescheduled for I think it was said next Wednesday, 1 October, on the basis that by then passports will be available. So his position is that one only needs to consider the mental health aspect of the alleged fundamental change in circumstances, because he proposes that the mother returns with KF in any event.

The guardian’s position is essentially neutral on the application. I say nothing further about it. Ms Savage says the guardian has concerns obviously about what is reported to be the mother’s mental health state and has herself made a referral to a local authority, or children’s services, because of the potential impact of the mother’s mental health on KF. Although I infer from what Ms Savage said that the guardian does not take a view on whether what the mother says is established or not, but simply the fact of it being said raises sufficient concerns that it ought to be in the domain of children’s services.

The test I have already referred to which emerges from the new, well not so new these days, rule 12.52A of the Family Procedure Rules which enables the court to set aside a return order in circumstances where no error of the court is alleged.

The practice direction which accompanies it provides further clarification which says that in rare circumstances the court might also set aside its own return order where it has not made an error but where new information comes to light which fundamentally changes the basis on which the order was made. The threshold for the court to set aside its decision is high, and evidence will be required, not just assertions or allegations.

In the leading authority on this Moylan LJ referred to a four-stage process for dealing with such applications. Building on the authorities dealing with applications to set aside, findings of fact made in children cases, he said that he suggested the process required a four-stage approach.

“The first being the court will first decide whether to permit any reconsideration. The approach to that seems to me to require the court to evaluate whether there is evidence of a fundamental change in circumstances which warrants the court embarking upon a process of reconsideration of the order it made after due process. If the court does consider that there is evidence of a fundamental change in circumstances then the court decides the extent of any further evidence. Once that evidence is collated the court in a separate hearing then considers whether to set aside the existing order and if set aside it redetermines the substantive application”.

Of course the first stage test described which requires “evidence of a fundamental change” does not ascribe a value or weight to the evidence of fundamental change which is required to open that gateway; one might (extracting a similar test to that applied by Peter Jackson LJ in Re E) pose the question “Does the evidence provide solid grounds for believing that the earlier conclusion requires re-visiting?” Solid grounds would certainly suggest a presence of credible evidence. The conclusion I reach on the application is that the evidence adduced by the mother in her statement is not significantly different in its nature or substance to the sort of evidence that was before Mr Goodwin KC. Dr McClintock’s evidence contemplated a decline in the mother’s mental health consequent upon a return. It may have been more focused on what might happen after the return, but inevitably it must also have contemplated the impact of an adverse decision on the mother’s mental health before a return. And what is set out in the mother’s evidence seems to me to be within the parameters which were contemplated by Dr McClintock and by Mr Goodwin in terms of a deterioration.

The medical evidence which, insofar as it is available, is insofar as the referral letter to the consultant psychiatrist is concerned, inconsistent with the mother’s assertion that she has been considering killing herself. It is difficult to see how a GP could make such an obvious and significant entry in his records that there are no thoughts of self-harm if in fact the mother was saying to the GP that she was on the verge of a serious attempt on her own life.

Whilst the other reference from the GP is inconsistent with that, the following day the actual response of the doctors and in particular the response of the team at a hospital, albeit absent any evidence from them, does not suggest that the mother’s description of herself as being effectively on the edge of a serious attempt on her own life was what they saw, and what they evaluated, in terms of the risk. Because in effect the GP and the hospital seem to have done little more than confirm the prescription for antidepressants, and to have referred the mother to other services. So there seems to be some disconnect between the objective evidence which appears in the records, and the mother’s description of her position.

That in its totality seems to me to be in its description perhaps beyond what Dr McClintock or Mr Goodwin would have contemplated, but that is entirely reliant on the mother’s word, and the medical evidence does not align itself with that but aligns itself in my assessment more with what Dr McClintock and Mr Goodwin concluded in terms of the risks of deterioration.

So in respect of the submission that there is evidence of a fundamental change in the circumstances, I do not accept that the mother’s statement and the evidence adduced to that cross the threshold for evidencing that and do not amount to solid grounds for revisiting the decision but rather evidence a position broadly consistent with that which was delineated in Mr Goodwin’s judgment.

Given that the position is still that the return order provides for a return of the mother with KF, that in its effect means that KF will return with her mother and therefore the non-separation, or the separation point which is the second limb of Mr Gration’s submission is not met.

So, that being so, the first limb of the test is not satisfied, and so the set aside application is refused, which leads us on then to the application for the variation of the return order to provide a new date and to vary the terms in relation to the passports.