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A (A Child) (1980 Hague Convention: Set Aside) [2021] EWCA Civ 194

A father successfully appealed a decision to set aside a return order.

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The child, A, was born in England and aged 12 at the time of the appeal. A's mother ('M') was a British national and his father ('F') an Italian national. Shortly after A's birth, the family moved from England to Italy where the parents signed a declaration recognising F's paternity. A attended nursery and primary school in Italy and regularly travelled to England to visit his maternal family. In the summer of 2019, M and A travelled to England and M decided she would remain in the country with A. F travelled to England twice to try to resolve the matter and discovered M had enrolled A in an English school.

In early 2020, M applied ex-parte for an order preventing F from removing A from the jurisdiction. F then began proceedings under the Hague Convention by signing an application to the Italian Central Authority for A's return.

In due course, Ms Deidre Fottrell QC granted the application for summary return. The judge accepted evidence that F had rights of custody for the purpose of Article 3 and found that M's defence under Article 13(a) and (b) was not made out.

Under the terms of the order, F travelled to England in October 2020 to collect A. M applied to stay the return order on the basis of a change in circumstances. Mostyn J granted the stay and CAFCASS interviewed A again to establish if his alleged objection was genuine. At a hearing before Mr Leslie Samuels QC in November 2020, the judge refused M's application to join A to the proceedings and to appoint a guardian to represent him.  The judge found, amongst other things, that evidence of A's wishes and feelings amounted to a fundamental change of circumstances. The return order was set aside.

In February 2020, the Court of Appeal dismissed M's application for A to be joined as a party to the appeal, largely because his views and interests had been provided to the court fully through the evidence of the CAFCASS officer and the parents' submissions.

The court considered FPR rule 12.52A, PD 12F 4.1A and the relevant case law and confirmed   that "the test as to whether there has been a 'fundamental change of circumstances' requires to be set high" [48]. Mr Justice Hayden concluded, "I do not consider that the evidence in this case, as set out above, crossed the high bar, established both in the case law and fortified by the changes to the FPR. Indeed, I regard M's application as a clear example of an attempt to reargue a case which had already been comprehensively determined." [47] Asplin and Moylan LJJ were in agreement and F's appeal was successful.

Case summary by Dr Sara Hunton, Barrister, Field Court Chambers

For full case, please see BAILII