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W (A Child) [2018] EWCA Civ 1904

Court of Appeal judgment commenting on the jurisdiction of the High Court to set aside a final order made under the Hague Convention 1980.

The parties had one child and lived in Spain. In 2016, the mother wrongfully removed the child to England. The father applied under the Hague Convention 1980 for the return of the child. The mother raised Article 13(b) defences. In particular, the mother relied on her mental health and the effect returning to Spain would have on her and the child. At the final hearing, His Honour Judge Bromilow did not find that there was a grave risk of harm nor that the child objected and subsequently ordered that mother and child return to Spain.

Following that judgment however, the mother suffered a marked deterioration in her mental health. She applied to set aside HHJ Bromilow's return order and sought a further psychiatric assessment and a re-hearing. HHJ Bromilow acceded to that application stating that the mother's psychiatric health had "fundamentally changed" and that she was "psychologically overwhelmed by the circumstances".

The father appealed. He made five submissions, [at paragraph 21], as to why the High Court did not have power to set aside a final order made under the Hague Convention 1980.

Given the new evidence concerning the mother's mental health however, the father accepted that the 1980 Convention application would have to be reheard. In practical terms then, the appeal was academic. The Court of Appeal technically dismissed the father's appeal but still proceeded to comment on the important point of whether the High Court had power to set aside a final order.

Lord Justice Moylan, giving the lead judgment, commented that the hurdles to the existence of such a set aside power centre on the effect of Section 17 of the Senior Courts Act 1981, the decision in Re M (Abduction: Undertakings) [1995] 1 FLR 1021 and the meaning of rule 4.1(6) FPR 2010.

Moylan LJ stated that there would be considerable advantages to a judge who made the final order being asked to determine whether any asserted change of circumstances justifies any reconsideration of the order and, if so, whether it is of sufficient impact to justify a rehearing. This would avoid the need for the parties to come to the Court of Appeal. Moylan LJ expressed that the test for such an application could be: "whether there has been a fundamental change of circumstances which sufficiently undermines the basis of the court's decision and order to require the application to be reheard".

The Court of Appeal did not consider the set aside power could be found in rule 4.1(6) of the FPR 2010. As to the conflict posed by s.17 SCA 1981, the Court of Appeal stated that given the development of the legislative history there are arguments for concluding that s.17 SCA 1981 does not apply to orders made by the High Court in particular in respect of children.

The Court of Appeal's provisional view then was that the High Court does has power under the inherent jurisdiction to review and set aside a final order under the 1980 Hague Convention.  This power can be exercised when there has been a fundamental change of circumstances which undermines the basis on which the original order was made. 

Summary by Patrick Paisley, barrister, 1GC Family Law
____________________

Case No: B4/2018/1218
Neutral Citation Number: [2018] EWCA Civ 1904

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM

HIS HONOUR JUDGE BROMILOW
Sitting as a Deputy High Court Judge

HIGH COURT OF JUSTICE
FAMILY DIVISION
FD17P00388

Strand, London, WC2A 2LL

Date: 15/08/2018


Before :

LORD JUSTICE MOYLAN
LORD JUSTICE HOLROYDE

and
LORD JUSTICE PETER JACKSON
- - - - - - - - - - - - - - - - - - - - -

Between:

Re W (A CHILD)
 
- - - - - - - - - - - - - - - - - - - - -

Mr E Devereux QC and Mr J Green (instructed by Best Solicitors) for the Appellant
Mr H Setright QC
and Mr M Gration (instructed by Dawson Cornwell Solicitors) for the Respondent

Hearing date: 30th July 2018
- - - - - - - - - - - - - - - - - - - - -

Judgment
Lord Justice Moylan:
 
Introduction
1. The father appeals from the order made on 30th April 2018 by His Honour Judge Bromilow, sitting as a Deputy High Court Judge.  By this order the judge set aside the previous order he had made on 30th November 2017 under The Hague Child Abduction Convention 1980 ("the 1980 Convention") by which he had ordered the mother to return the parties' child to Spain by 28th December 2017.  He did so because he considered that there had been a "sea-change" since he had made that order because of a significant deterioration in the mother's mental health.  He made a number of directions leading to the proposed rehearing of the father's application.

2. I gave permission to appeal largely because this case appeared to provide the opportunity for this court to consider whether the High Court has jurisdiction to set aside a final order made under the 1980 Convention.  This is an issue which has been referred to in previous Court of Appeal decisions but never determined: see, for example, Black LJ (as she then was) in In re F (Children) (Return Order: Appeal) [2017] 4 WLR 4, [26] and [27].  However, following the hearing, I have come to the conclusion that, for a number of reasons, it is neither necessary nor appropriate for this court to address this issue in this case.  The reasons for this can be briefly summarised. 

3. First, at the conclusion of the hearing Mr Devereux QC, for the father, effectively accepted that the substantive application has to be reheard given the circumstances as set out below.  In the event of the appeal being allowed, he accepted that he could not stand in the way of this court giving the mother permission to appeal out of time.  He also effectively, and in my view rightly, acknowledged that, given the judge's conclusions as to the impact of the new evidence about the mother's mental health on his original decision, we would be likely to allow the appeal and order a rehearing.  As a result, the outcome for the parties and B will be the same, whether we dismiss or allow the appeal, namely there will be a rehearing.  The appeal has, therefore, in practical terms become academic.  

4. Secondly, the case was listed for hearing on short notice, leading to the parties not being in a position fully to argue the legal questions which the issue identified above raises.  Additionally, my further researches since the hearing have led me to conclude that the proper meaning and scope of section 17 of the Senior Courts Act 1981 requires significant additional argument (as I will seek to explain below). 

5. Thirdly, because of delays which have already occurred, this case is now urgent and any further delay, which would be required if the central issues were to be substantively addressed by this court, would, frankly, be unacceptable.

6. Accordingly, I propose, as a pragmatic way of dealing with the case, that the appeal is dismissed and that the directions given by the judge for the purposes of the rehearing are implemented and the matter listed as a matter of urgency.

7. However, despite coming to that conclusion, I propose to summarise the parties' respective submissions and make some brief observations about the legal issues raised by the single ground of appeal, which contends that the judge was wrong to decide that the High Court has jurisdiction or power to set aside a final order made under the 1980 Convention.  As will be seen, my provisional view is that this submission is not well-founded.

Background
8. I propose only to set out only the briefest summary of the history.

9. The mother is British.  The father is Spanish.  They have one child now aged 8 (who I will call "B").  The parties met in Spain where the mother had spent a substantial part of her childhood.  They were in a relationship until early 2014.  Following their separation and with the assistance of lawyers the parties entered into an agreement which was approved by the Spanish court and which provided for B to live with the mother and to have regular contact with his father.

10. On 12th October 2016 the mother travelled to England with B.  It appears to have been accepted that this was a wrongful removal.

Proceedings
11. As will become clear, the proceedings in this case have not followed expeditiously from the date of the wrongful removal.  During the hearing we did not explore the reasons for this but I set out the timetable to explain why the case undoubtedly now requires expeditious determination.

12. The father did not commence proceedings under the 1980 Convention in England until 27th July 2017.  I should make clear that neither the father's legal representatives nor the International Child Abduction and Contact Unit were responsible for any part of this delay.  ICACU only received the request on 18th July 2017 and the father's solicitors were promptly instructed on 20th/21st July. 

13. The first effective hearing did not take place until 11th September because the mother was not located and served until 8th September.  In her response to the father's application the mother relied on Article 13(b) (a grave risk that the child's return to Spain would expose him to physical or psychological harm or otherwise place him in an intolerable situation) and B's objections (that he objected to being returned to Spain).  The final hearing took place on 14th/15th November 2017.  At the hearing the judge heard oral evidence from a Consultant Psychiatrist who had filed a report on the mother.  Her mental health and the effect on her of returning to Spain were the foundation of the mother's reliance on Art 13(b).

14. The judge gave judgment orally on 15th November.  The subsequent order, which was not made until 30th November, required the mother to return B to Spain by 28th December 2017 on the basis that B would remain in her care.

15. On 11th December 2017 the mother applied for the order of 30th November to be set aside and for the instruction of the psychiatrist to provide a further report.  The substantive application was based on the mother's already precarious mental health having "markedly deteriorated" since the hearing (as set out in the statement filed by her solicitor).  After a brief directions hearing, the mother's application came back before HHJ Bromilow on 19th December 2017.  He gave permission for the further instruction of the psychiatrist to provide a report on the current state of the mother's mental health and the likely impact on her of her returning to Spain.  The mother's application for a rehearing was listed for determination on 15th/16th March 2018.  We were told that these dates were the earliest that the judge could hear the case in London.  In my view this was not sufficient to justify such a significant delay.  An alternative means of conducting an earlier hearing should have been found.

16. As I have already explained, beyond the explanation for the delay until 15th March, we did not explore the reasons for the case progressing so far outside the 6-week requirement.  However, it is plainly unsatisfactory, to put it mildly, that a year should have elapsed since the father made his application without it having been finally determined.  There is a heavy obligation on the parties and the court to make sure that proceedings under the 1980 Convention are completed expeditiously.

The Judgments
17. In his first judgment of 15th November 2017 the judge found that B did not object to returning to Spain.  The judge's ultimate conclusion in respect of Article 13(b) was that this was also not established.  He would have been satisfied of a grave risk of harm to B but for his assessment of the adequacy of the proposed protective arrangements.  He considered that they would sufficiently ameliorate the effect on the mother's mental health of a return to Spain.

18. In his second judgment of 22nd March 2018 the judge sets out that, following delivery of his judgment on 15th November, "the mother suffered a panic attack in the court building".  She was treated by paramedics.  In his further report dated 19th January 2018 the psychiatrist said that there had been a "dramatic deterioration" in the mother's mental health which he had not anticipated.  It was his opinion that she "is not functioning now and is unlikely to function in Spain even with support".  The mother had been "psychologically overwhelmed by circumstances".  The psychiatrist also gave oral evidence during which he said: "There has been a very substantial quantum deterioration that has occurred since I last saw her."

19. The judge decided that he had jurisdiction to set aside his previous order under r.4.1(6) of the Family Procedure Rules 2010 ("the FPR 2010").  In reaching this conclusion he followed, in particular, In re F (A Child) (Return Order: Power to Revoke) [2014] 1 WLR 4375.  The judgment makes no reference to any of the other legal arguments developed before us, in particular the father's submissions on s. 17 of the Senior Courts Act 1981.

20. Based on the new evidence the judge concluded that there had been a significant change of circumstances.  The "position with regard to (the mother's) psychiatric health has fundamentally changed".  Previously, the return of B to Spain had been predicated on his returning with and being cared for by the mother.  This appeared no longer to be possible, leading to the father suggesting that "the child should be separated from his mother and cared for by his paternal family".  This proposal "makes for a very different situation" which had not been considered at the previous hearing.  The judge concluded that:

"The evidence about (the mother) now goes far beyond what was before me in November 2017.  It represents a sea-change and a significant change in circumstances".

Accordingly, he set his previous order aside so that the application and the mother's reliance on Article 13(b) could be re-determined having regard to the new evidence. 

Submissions
21. In support of the appeal, Mr Devereux marshalled his submissions into five points:

(a) Section 17 of the Senior Courts Act 1981 ("the 1981 Act") prevents or inhibits the High Court having the power to set aside a final order;

(b) Previous authority supports the proposition that the only available route to challenge an order made under the 1980 Convention is by way of an appeal;

(c) The decision of In re F is wrong;

(d) The argument advanced on behalf of the mother, that these proceedings are analogous to proceedings where a child's welfare is paramount, is wrong;

(e) The supposed practical advantages of the court having a set aside jurisdiction are illusory and there may well be real disadvantages of such a power.

I now summarise how Mr Devereux developed these points.

22. (a)  Section 17 provides as follows:

"17. Applications for new trial.

(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 was by a judge alone and no error of the court at the 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."

Mr Devereux's simple submission is that the section means what it says.  In other contexts, he points to the Family Court having been given the express power to set aside ("rescind") "any order" by s. 31F(6) of the Matrimonial and Family Proceedings Act 1984 (by amendment in 2013) ("the 1984 Act") and to r. 9.9A of the FPR 2010 (by amendment in 2016) which enables a party to apply to set aside a financial remedy order "where no error of the court is alleged".

23. (b)  The Court of Appeal authorities on which Mr Devereux relies are: Re M (A Minor) (Child Abduction) [1994] 1 FLR 390; Re M (Abduction: Undertakings) [1995] 1 FLR 1021; and Walley v Walley [2005] EWCA Civ 910.

24. In the first Re M, Butler-Sloss LJ (as she then was) and Sir Thomas Bingham MR (as he then was) agreed that, because there had been a "fundamental change of circumstances" (pp. 394, 398), the consent return order should be set aside by the Court of Appeal and a re-hearing ordered.  Butler-Sloss LJ, albeit "in the absence of full argument", considered that an application to set aside a final order under the 1980 Convention should be by way of appeal, p. 397.

25. In the second Re M, Butler-Sloss LJ gave the only judgment.  She decided that an "order to return, or not to return" is a final order (p. 1024).  She also decided that Johnson J had been "right to refuse to entertain an application to set aside" the previous return order made by Kirkwood J because it was "a matter for this court" (p. 1024). 

26. In Walley v Walley Thorpe LJ and Wall LJ distinguished the above cases in circumstances where the court was dealing with what Thorpe LJ described as a "conditional" return order, [14], namely a return order which was "subject to a series of stringent conditions", [7].  Any question as to the fulfilment of those conditions "is a question of implementation which is to be determined by the trial judge", [14].  Wall LJ agreed.  If the conditions were not fulfilled it was "sensible both, as a matter of logic and as a matter of law, that the application to set aside the order should be made to the trial judge", [19].  He did not consider this inconsistent with the above decisions, [18].

27. (c) Mr Devereux submits that In re F was wrongly decided in part because Mostyn J did not correctly apply Roult v North West Strategic Health Authority [2010] 1 WLR 487 ("Roult") and because he did not consider s. 17 of the 1981 Act.  Mr Devereux submits that r.4.1(6) of the FPR 2010 is confined, as it states, to orders made pursuant to a "power of the court under these rules".

28. As to Roult, Mr Devereux questioned Mostyn J's limited reference, [12], to what Hughes LJ (as he then was) had said.  He submits that the effect of what Hughes LJ said is not encapsulated when he said: "I agree that in its terms the rule is not expressly confined to procedural orders", [15].  Later in the same paragraph, Hughes LJ said:

"There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – and 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." (my emphasis)

Mr Devereux also referred to MacDonald J's decision in N v J (Power to Set Aside Return Order) [2018] 1 FLR 1409.

29. (d) Mr Devereux submits that proceedings under the 1980 Convention are not the same as other proceedings concerning children.  In support of this submission he referred to Re H (A Child) (International Abduction: Asylum and Welfare) [2017] 2 FLR 527.

30. That case was an appeal from an order made in wardship proceedings which Black LJ said were "not … the same" as proceedings under the 1980 Convention, [13].  In response to the argument that the judge had no power to entertain the mother's application to set aside the order, she concluded as follows:

"[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."

31. (e) Under this heading, Mr Devereux adverted to the risk that the existence of a set-aside jurisdiction would provide too easy an opportunity for a disappointed party to seek to vary or set aside orders thereby undermining the intended finality of an order under the 1980 Convention.  What evidence would be sufficient?  What test would the court apply?  The absence of any time limit, as there is for an appeal, would be a further disadvantage.  A hearing in the Court of Appeal could be arranged more quickly.

32. In response to questions from the court, Mr Devereux acknowledged that there may be occasions when an order cannot be enforced or implemented because of changed circumstances.  In those circumstances he submitted that, absent an appeal, the change would be addressed by the court staying the order including, if merited, indefinitely.

33. Mr Setright's written submissions focused on the interests of children.  He referred to the preamble to the 1980 Convention which states:

"Firmly convinced that the interests of children are of paramount importance in matters relating to their custody …"

He also relied on In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 in which Baroness Hale and Lord Wilson, giving the judgment of the court said, at [14]:

"… the fact that the best interests of the child are not expressly made a primary consideration in Hague Convention proceedings, does not mean that they are not at the forefront of the whole exercise".

He submitted that there is, therefore, "clear justification for the existence of a power to set aside a return order".

34. Additionally, he submitted that it would further the overriding objective and reduce delay if such a power could be exercised by the High Court rather than being confined to the Court of Appeal.  The latter is neither practical nor expedient.  Mr Setright pointed to the fact that the additional evidence from the psychiatrist was only obtained in this case pursuant to the direction given by the lower court on 19th December 2017.  He also submitted that the trial judge is likely to be in a better position to determine how the court should deal with the application.  For example, deciding whether even to permit the application to proceed and, if he/she does, deciding whether there has been a sufficient change which undermines the previous determination sufficiently to justify a rehearing.  The Court of Appeal would be limited to deciding whether the order should be set aside.

Discussion
35. For the reasons set out above, it is nether necessary nor appropriate to determine substantively the legal issue raised by this appeal, namely whether the High Court has power to set aside or vary a final order made under the 1980 Convention when there is alleged to have been a change of circumstances.  However, I propose to make a few brief observations, including setting out my initial response to the arguments advanced by the parties.

36. The hurdles to the existence of such a power centre on the effect of s. 17 of the 1981 Act and, it seems to me, the effect of, in particular, the decision of this court in the second Re M as well as considering the meaning of r. 4.1(6). 

37. However, before considering those issues, it seems to me that there would be considerable advantages to the judge who made the final order being asked to determine whether the asserted change of circumstances justifies any reconsideration of the order and, if it does, whether it is of sufficient impact to justify a rehearing.  I would express the test as being whether there has been a fundamental change of circumstances which sufficiently undermines the basis of court's decision and order to require the application to be reheard. 

38. This would avoid the need for the parties to come to the Court of Appeal which would apply the test in Ladd v Marshall [1954] 1 WLR 1489 perhaps in a modified form; see In re S (A Child) (Abduction: Custody Rights) [2001] 1 WLR 3355, [26].  If that test was satisfied the original order would have to be set aside so that the judge had power to take the changed circumstances into account when deciding what order to make.  This, to me, seems a cumbersome way of addressing this situation when the judge could decide directly whether the changed circumstances justified any review and, if they did, the form that this review would take, ranging from a full rehearing to a more simple review.  I also do not accept that it can be assumed, as submitted by Mr Devereux, that a hearing in the Court of Appeal could be arranged more quickly than before a High Court judge. 

39. In In re F, Black LJ made similar observations when she said that "it is plainly desirable that there should be such a power in the High Court", [27].  In her view limiting the power to the Court of Appeal would have "considerable practical disadvantages which would be likely to work against the interests of children whose welfare should be served by the Convention".  She added that "the Court of Appeal is not well-suited to hearings of the type that would be required …", [27].

40. I am also not attracted to Mr Devereux's submission that the High Court judge would be able to address the change in circumstances by the limited expedient of declining to enforce it and by staying the order, perhaps indefinitely.  This would result in a very unsatisfactory situation not least because of it would potentially be incongruent with the structure of Article 11 (6)-(8) of BIIa which depends on there being "an order for non-return" and not a stayed order for return.  I suppose the latter could be interpreted as an order for non-return but it would clearly be more appropriate for the court to make an effective substantive order.

41. I would add that, to ensure that this process would operate in accordance with the overriding obligation to complete proceedings expeditiously, any such application would have to be determined considerably more quickly than the application was in this case.  I appreciate that this is easier said than done, with the considerable pressure of work on the Family Division, and other family judges who hear such cases when sitting as Deputy High Court judges, but nevertheless it is essential.

42. The ability of the High Court to undertake this exercise would also mean that the Family Division, in general, and 1980 Convention cases, in particular, were not in, what would otherwise be, the following anomalous situation.

43. First, as referred to above, in the Family Court every order made by a judge, including High Court judges sitting in the Family Court, can be set aside pursuant to s. 31F(6) of the 1984 Act.  High Court judges sitting in the Family Division would, alone among family judges, be excluded from exercising such a power.  Section 31F(6) provides:

"The family court has power to vary, suspend, rescind or revive any order made by it including –

(a) power to rescind an order and re-list the application on which it was made;

(b) power to replace an order……

(c) power to vary an order with effect from when it was originally made".

44. Secondly, in respect of return orders, Black LJ in Re H decided that the High Court has power to vary, including by setting aside, a return order made under the inherent jurisdiction: see paragraph 30 above.  Although I acknowledge that 1980 Convention return orders are not the same as return orders made under the inherent jurisdiction, I would question the justification for such a significant difference in procedure.

45. It could also be said to be anomalous for the High Court not to have such a power when the Court of Appeal has been held to have a power to review a substantive order made by this court when determining an appeal: see TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, [58], [59], [98]; and Re B (Abduction: New Evidence) [2001] 2 FCR 531, [23].

46. Turning next to r. 4.1(6) of the FPR 2010, in my view Mr Devereux mounted a powerful case that this provision does not give the court power to set aside a final order made under the 1980 Convention.  As he pointed out, r. 4.1 is headed: "The court's general powers of management" and it appears in that Part of the Rules dealing with "General Case Management Powers".  Further, the terms of r. 4.1(6) provide:

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

The wording appears to be confined to orders made under the rules, whereas a final order under the 1980 Convention is made under the Child Abduction and Custody Act 1985.

47. I think it would be fair to say that the position in respect of this rule is the same as that under the equivalent rule in the CPR, r. 3.1(7).  Sir Terence Etherton MR described there being "a lack of clarity about the precise scope" of the latter in Salekipour and another v Parmar and another [2018] 2 WLR 1090, [69].  I would respectfully agree with his observation that, on a "literal reading", it cannot apply to circumstances such as these, since an order made under the 1980 Convention is not made pursuant to a "power of the court under these rules", [62]. 

48. Sir Terence Etherton also considered a number of authorities including Roult.  I would agree with his distillation of what Hughes LJ said in that case rather than Mostyn J's summary in In re F.   Namely, "that CPR r. 3.1(7) could not apply to a final order disposing of a case, whether in whole or in part", [63].  He then dealt with two other authorities which in his view put that "clear distinction" between final orders and other orders in doubt, [64].

49. Sir Terence Etherton also referred to Sharland v Sharland [2016] AC 871 in which Baroness Hale addresses both s. 31F(6) of the 1984 Act and r. 4.1(6), [41].  Just after referring to both provisions, she states: "On the face of it, as the editors of The Family Court Practice 2015 point out (p 1299), this is a very wide power".  She then adds that "the power … does give the Family Court power to entertain an application to set aside a final order in financial remedy proceedings on the well-established principle with which we are concerned in this case".   I appreciate that there is some scope for ambiguity but it seems clear to me that the "power" to which Baroness Hale is referring is that provided by s. 31F(6).  My view is based significantly on the fact that the page in The Family Court Practice 2015 to which she refers deals with the 1984 Act alone.

50. Can the power to set aside a final order under the 1980 Convention be found elsewhere?

51. The High Court has long been held to have the power to set aside a final financial order on the ground that the order was "obtained by fraud or mistake": see de Lasala v de Lasala [1980] AC 546 at 561C.  Although the decision was in the context of proceedings in Hong Kong, it was clearly stated that a party could bring "a fresh action to set aside" an order obtained by fraud or mistake.  The existence of this power was confirmed by the Court of Appeal in Robinson v Robinson (Practice Note) [1982] 1 WLR 786, in which Ormrod LJ said, after quoting from de Lasala, that the power to set aside final orders in the Family Division was well established and extended to material non-disclosure.  Lord Brandon expressly approved this decision and himself referred to applications "to set aside orders" in Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424, at 442/443 and 445 H.  Wilson LJ also confirmed the existence of this power in Judge v Judge [2009] 1 FLR 1287 in which he said that the proper procedure was by "summons or notice of application returnable before the judge who made the award" [48].

52. In the later decision of Gohil v Gohil [2016] 1 All ER 685 Lord Wilson identified that the "consonance" of this jurisdiction with s. 17(1) of the 1981 Act "seems never to have been established", [17].  He suggested that "definitive confirmation" of this jurisdiction, "whether by a rule made pursuant to s. 17(2) or otherwise" was needed, [18(c)].  However, he went on to endorse the conclusions of the Working Party of the Family Procedure Rule Committee that it should proceed on the basis that "there is power for the High Court and the family court to set aside its own orders where no error of the court is alleged and for rules to prescribe a procedure".

53. It is also well established that the jurisdiction exists, including in the High Court, to set aside findings and order a rehearing in children proceedings: see In re Z (Children) (Care Proceedings: Review of Findings) [2015] 1 WLR 95.  This is in part based on what Sir Stephen Brown P said in W v Ealing London Borough Council [1993] 2 FLR 788, 794 G/H:

"… as Balcombe LJ said … in (In re A and Others (Minors) (Residence Order: Leave to Apply) [1992] Fam 182, 194D) "… this is not ordinary civil litigation: it concerns children".  In our judgment that is a salutary observation and it would be unwise in this jurisdiction to seek to restrict the discretion of the court by imposing a rigid formula upon the conduct of proceedings."

The same reasoning underlies the different approach taken in cases concerning children to issue estoppel: see, for example, In re B (Care Proceedings: Issue Estoppel) [1997] Fam 117 in which Hale J (as she then was) made general observations about the matters which would impact on the court's decision as to whether or not to allow a full rehearing, pp. 127/129.

54. The above examples (to which setting aside for fraud could be added) of the High Court having the power to order a rehearing or set aside a finding or judgment would appear potentially to conflict with s. 17.  This would mean either that the court has wrongly developed powers in a manner which conflicts with s. 17 or that this section does not have that effect.  I would find the former surprising given the weight of the authority which has established the existence of these powers. 

55. My limited researches since the hearing of this appeal have confirmed my view that this issue requires fuller consideration than has been possible for the purposes of this appeal.  However, I can say that they have led me to the preliminary view that s. 17 is of limited application to family cases. 

56. I first note, in passing, the fact that despite the reference in the index (which inaccurately refers to s. 18 as s. 17), s. 17 does not appear to feature at all in the text of Rayden and Jackson on Divorce and Family Matters 18th Ed.

57. More fundamentally, I say this because, in over-simplified summary, from and after the Supreme Court of Judicature Act 1873 ("the 1873 Act"), there were different provisions which, broadly stated, (i) dealt with motions for a new trial (where a suit had been tried by a judge and jury); (ii) dealt with applications for a rehearing (where a suit had been tried by a judge alone); and (iii) dealt with orders made by a High Court judge in chambers: see Rayden on Divorce 2nd Ed, 1926 pp 320/324.  These provisions were partly statutory and partly in the relevant rules.

58. The Supreme Court of Judicature Act 1890, s. 1, provided that "every motion for a new trial, or to set aside a verdict, finding, or judgment, in any cause or matter in the High Court in which there has been a trial thereof, or any issue therein, with a jury shall be heard and determined by the Court of Appeal".  This was repeated in the Supreme Court of Judicature (Consolidation) Act 1925 ("the 1925 Act"), s. 30.

59. I have not followed the statutory history between 1925 and 1981 which would include when it was extended to all trials of causes or matters.

60. Section 50 of the 1873 Act and s. 62 of the 1925 Act provided that "every order made by a judge of the High Court in chambers … may be set aside or discharged upon notice by a Divisional Court, or by the judge sitting in court".  The latter provision was repealed by s. 15(4) of the Administration of Justice Act 1956 "without prejudice … to the power of rules of court to make provisions corresponding to the said section 62". 

61. The rules, for example, r. 46 of the Matrimonial Causes Rules 1924, provided that an application, by notice of motion, "for the re-hearing of a cause heard by a Judge alone where no error of the Court at the hearing is alleged" was to be made to the Divisional Court.  I have not looked at the intermediate rules but by the Matrimonial Causes Rules 1973, r. 54, such applications were to be made to a judge, including in the High Court.  The above statutory provisions could explain why the rules dealt only with applications for the rehearing of a cause.

62. The above structure clearly provides good reasons for concluding that s. 17 does not apply to orders made by the High Court in particular in respect of children.  It seems unlikely that proceedings concerning children were within the definition of causes or matters or were dealt with at trials.  Issues concerning children were typically dealt with by "a summons to the Judge" and determined in chambers: see Rayden 2nd Ed p 285.  However, the legislative archaeology is not a matter upon which we heard submissions in the present case.

63. I now turn to the decisions relied on by Mr Devereux, in particular the second Re M.  Whilst certain passages (in particular, the obiter comments of Wall LJ in Walley, [18], might seem to be to that effect, I do not consider that these cases decided that the High Court had no jurisdiction to set aside a final order.  In my view, in Re M it was decided that Johnson J had been right to decline jurisdiction to set aside a final order because, as a matter of practice, an application to set aside such an order "should be made in the Court of Appeal", p 1024. 

64. Further, as Mr Setright pointed out during the hearing this was based significantly, if not solely, on the fact that "(a)ll the evidence is written".  To adapt what Thorpe LJ said in Walley, "whilst all that Butler-Sloss LJ said in the two cases of Re M (1994 and 1995) may have been apt to the issues that they raised" the circumstances of the present case are different.  There was significant oral evidence in this case which, in itself, reflects developments since 1995 in the manner in which applications under the 1980 Convention are determined.  Whilst oral evidence remains tightly controlled it takes place much more frequently than in 1995 and probably also than in 2005.

65. I would add one, final element which is to refer to the provision in the rules to which Mr Setright drew our attention.  Rule 4.1(2) of the FPR 2010 provides:

"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".

The concluding words were probably inserted for the avoidance of doubt but they make clear that the rules do not inhibit the High Court from exercising such other powers as it has.

66. In conclusion, my provisional view is that the High Court has power under the inherent jurisdiction to review and set aside a final order under the 1980 Hague Convention.  This power can be exercised when there has been a fundamental change of circumstances which undermines the basis on which the original order was made.  I set the bar this high because, otherwise, as Mr Devereux observed, there would clearly be a risk of a party seeking to take advantage of any change of circumstances such as a simple change of mind. 

67. I would add that the re-opening of a final Hague order (whether for return or non-return) is likely to be a rare event indeed and that, as the process is a summary one, any application for such an order will necessarily have had to be filed without delay.  Further, where an application for rehearing has been issued, the court will case-manage it tightly so that only those applications that have a sufficient prospect of success are allowed to proceed and then only within parameters determined by the court.

Conclusion

68. In conclusion, I propose that the appeal is dismissed with the father's application under the 1980 Convention being listed as a matter of urgency, it being fit for vacation business.

69. I propose to invite the Family Procedure Rule Committee, taking that to be the appropriate body, to consider the issue of why orders made in the Family Division are not included within the scope of s. 31F(6) of the 1984 Act.

Lord Justice Peter Jackson:
70. I agree.

Lord Justice Holroyde:
71. I also agree