(Court of Appeal, Sir James Munby, the President of the Family Division, Black, McFarlane LJJ, 7 December 2016)
Abduction – Return order – Set aside of return order
The father’s appeal from a decision setting aside a return order was dismissed.
Hague Convention proceedings were initiated in relation to the three children when the mother took them from Hungary and came to the UK without the father’s consent. Despite findings being made that two of the children objected to a return, orders were made for them to be returned to Hungary.
The appeals of the mother and one of the children, L, were refused. The children failed to return and another appeal was launched and rejected. L was referred for psychiatric treatment by the GP due to concerns about her state of mind. On the deadline she was seen in A&E with suicidal ideation. The mother applied for the return order to be set aside and L was joined as a party.
The judge accepted that L’s behaviour and her determination not to return to Hungary constituted a change of circumstances and that the other two children would be placed in an intolerable position if they were returned without their sibling. The return order was set aside. The father appealed.
At the hearing the father conceded that it was possible for the High Court to set aside a return order and on the basis of that concession and in the absence of comprehensive submissions the Court of Appeal was reluctant to make a definitive pronouncement as to whether such a power did exist.
The appeal was dismissed. The judge carried out a careful review of the relevant factors and was entitled to weigh them as he did. It was clear that L’s mental state and the gravity of the consequences that might come to her if she were forced to return tipped the balance. The judge was clear that the order he was making was rarely invoked but that in some rare cases it was appropriate.