Neutral Citation Number: [2018] EWCA Civ 1208
Case No: B4/2018/0504/FAFMF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT FAMILY DIVISION
HHJ ROGERS
FD16P00621
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/05/2018
Before:

LORD JUSTICE GROSS
LORD JUSTICE MCFARLANE
and
LORD JUSTICE COULSON
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Between:

	Y (CHILDREN)		

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Henry Setright QC and Michael Gration (instructed by Dawson Cornwell) for the Appellant (mother)
James Turner QC (instructed by Brethertons LLP Solicitors) for the Respondent (father)

Hearing dates : Tuesday 15th May
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Judgment Approved
LORD JUSTICE MCFARLANE : 
1.	On 8 September 2017 His Honour Judge Mark Rogers, sitting as a judge of the Family Division, made a final order at the conclusion of child abduction proceedings under the Hague Convention. The order required the two children concerned, a girl now aged 10 years and a boy now aged 7 years, to be returned to Ontario in Canada, their home state from which, it was accepted, they had been wrongfully removed by their mother in October 2016.
2.	During the proceedings the mother had relied upon two exceptions within Article 13 of the Hague Convention, firstly relating to the children’s objections and, secondly, asserting under Article 13(b) that there was a grave risk that return of the children to Canada would expose them to physical or psychological harm or place the children in an otherwise intolerable situation. In the event, the “children’s objections” exception lacked real substance on the evidence and was readily dismissed by the judge. The Article 13(b) exception turned upon the mother’s psychological and emotional wellbeing, there being expert evidence before the court that she suffered from Post Traumatic Stress Disorder (“PTSD”) as a result, it was said, of her experiences during the latter stages of her relationship with the father in Canada. Having heard oral expert evidence and full submissions, at the end of a five day hearing, the judge rejected the mother’s Article 13(b) case.
3.	It is to be noted that the mother’s case before the judge was conducted on the basis that, if a return order were made, she would travel back to Canada with the children.
4.	Despite the fact that the father’s Hague application was made promptly after the children’s removal from Canada in October 2016, it is apparent that a wholly disproportionate and unacceptable degree of delay occurred, resulting in the final hearing taking place some 11 months after the children’s removal. Despite the clear decision of the judge on 8 September 2017, it is also of great concern to note that protracted negotiations then followed between the parties as to the terms of the order with the result that the judge was required to adjudicate upon issues of drafting before the court order could be sealed on 22 November 2017. 
5.	Paragraph 7 of the final order provided that the return of the children to Ontario should not take effect until each of three conditions had been satisfied, namely, that the mother had obtained a visa to enter Ontario, the paternal grandfather had provided a formal undertaking to meet financial promises that he had made to provide funds in respect of the mother and children’s living costs, and, thirdly, that the father had complied with undertakings that he had given.
6.	The mother did not make any application for permission to appeal the return order. However, on 5 January 2018 the mother issued an application under Family Procedure Rules 2010, Part 18, in the High Court, for “the trial judge to stay, suspend, and set aside the order…dated 8 September 2017 and permission be granted for a further single joint expert report.”
7.	On 31 January 2018 the father made a cross application seeking the enforcement of the return order by means of a “collection order”.
8.	The applications made by each party came before HHJ Rogers at a one hour directions hearing, conducted over a video link, on 15 February 2018. At the conclusion of that hearing the judge refused the two applications made by the mother and directed that the 8 September 2017 order should be varied so as to remove the three conditions in Paragraph 7 and releasing the parents’ from various of the undertakings that they had previously made to the court. Provision was made for the children to be handed over to the father for the purpose of repatriation to Canada on or after 8 March 2018, thereby providing a three-week window within which the mother might return the children to Canada herself should she choose to do so.
9.	It is against the judge’s orders made on 15 February 2018 that the mother now appeals to this court, permission to appeal and a stay of the order having been granted by Lord Justice Moylan on 16 March 2018. 
The mother’s case before the judge
10.	The mother’s case before the judge asserted that the High Court in Hague Convention proceedings had jurisdiction to re-open and, if justified, set aside a final order by virtue of FPR 2010, r4.1(6) which provides:
“A power of the court under these rules to make an order includes a power to vary or revoke the order.”
Reliance was placed upon two previous High Court decisions. First a decision in the context of Hague Convention proceedings of Mostyn J in Re F [2015] 1 WLR 4375 and, secondly, a decision of MacDonald J in proceedings under the inherent jurisdiction in NVJ (Power to Set Aside a Return Order) [2017] EWHC 2752 (Fam).
11.	In support of her substantive application, the mother asserted that there had been a deterioration in her mental health since the September hearing, to the extent that she had now been advised by an adult psychiatrist that she was in no fit mental condition to return to Canada. In support of her application the mother filed a short medical report from a consultant psychiatrist, Dr W, who had examined her on 28 November 2017. His report recorded the mother’s account, which was that “when the sealed (court) order was delivered on 24 November 2017, (she) developed severe suicidal thoughts. She attended casualty and was seen by an NHS psychiatrist. The judge had ordered her to return to Canada with her children to carry out the legal proceedings there. She had been somewhat aware that this was the case but the reality hit her with the sealed order”. 
12.	The mother’s application to the judge on 15 February was for the proceedings to be adjourned for the joint instruction of a fresh psychiatric expert to report upon the mother’s current mental wellbeing.
13.	The mother’s application was opposed on behalf of the father through Mr James Turner QC, who appeared for the father throughout the High Court proceedings as he does before this court. Mr Turner submitted that, rather than contemplating an adjournment, the judge should grasp the nettle and dismiss the mother’s application at that hearing.

The judge’s judgment
14.	On the question of jurisdiction the judge, who plainly was aware of the conclusion that he was about to announce with respect to the merits of the mother’s application, held that it was unnecessary for him to determine the point which would, he rightly considered, justify longer and fuller argument. He was, in the circumstances, prepared to accept for the purposes of his judgment that the court did have jurisdiction to entertain the mother’s application to set aside the final order.
15.	The judge recorded that it was an “important premise” upon which the September order had been made, that the mother had accepted that she would, in the event of a return order being made, return with the children to Canada.
16.	HHJ Rogers went on to consider the events that had taken place following the September hearing. He was critical of the stance adopted by the mother, which was that she would not begin any step to apply for a visa until the final sealed version of the court order was available, describing her stance as “ridiculous”. He held that the mother’s position was “indicative of a lack of good faith in taking the necessary steps to make the matter move forward.”
17.	More generally, and in like terms, he was critical of the “unreasonable stance taken that none of the relevant practical steps could be taken until the final form of the order was agreed and sealed.”
18.	He also noted that, during the 10-week period of negotiation as to the terms of the order no point or information was raised on behalf of the mother with respect to her medical situation and that “even as late as 11 December significant matters were being discussed in relation to immigration and the practicalities of that”, before, “out of the blue”, as it seemed to the judge, on 13 December the mother’s solicitors wrote to inform the other side of “a significant and material change in our client’s current psychological health and medical advice received by her”. Indication was given that an application would be made to set aside the order once public funding was available.
19.	Having observed that it was not clear what, if any, material was before Dr W, the judge stated his conclusion with respect to Dr W’s opinion as follows:
“I am not satisfied that that opinion given by him, succinct and robust though it appears to be, is a significant piece of material justifying the exercise of the jurisdiction. It is unclear to me upon what basis he certifies that she is medically unfit to travel to Canada. To the extent that he explains that, it is with the following phrase, “she has much less support than in England,” nothing in terms of the mother’s presentation to him was new. We spent, in September, a great deal of time both looking at the documents and hearing from the witnesses about the mother’s psychiatric and psychological functioning. I am not clear whether Dr W is saying that she is at that snapshot on 1 December medically unfit or whether that is a diagnosis or an opinion formed on an ongoing basis without limit of time. It seems to me that such profound opinion needs clear and proper reasoning for it to carry weight. It appears to have been precipitated by the events of the previous week and the referral of the general practitioner. ”
20.	Mr Henry Setright QC, who appeared for the mother, before the judge, leading Mr Gration, as they appear before this court, accepts that, despite the intervening period of two and a half months between Dr W’s examination and report and the February hearing, no further or updating medical evidence was filed by the mother. Further, it is plain that the application to adjourn was in no part based upon any need to obtain further and better particulars of Dr W’s opinion. 
21.	The judge went on to express substantial doubt as to the timing of the mother’s apparent collapse and her explanation that it was triggered by receipt of the sealed court order. The judge observed:
“Given the very grave suspicion that has been expressed, I am sorry to say that I have to cast a sceptical eye over the timing and the circumstances in which she was referred to Dr W.”
Having reviewed Dr W’s evidence, together with such further relevant records   as appeared in the GP’s notes, the judge stated his conclusion with respect to this material providing any justification for setting aside the final order and re-opening the Hague proceedings:
“In short, I am not satisfied that that material, which is the only material before the court, is of such moment or significance as to be a proper basis for the implementation of a process which would lead to a substantial revisiting of earlier decisions”. (paragraph 27)
22.	The judge went on to reject the mother’s application to instruct a fresh expert in these terms (paragraph 30):
“It is not, in my judgment, necessary. It is not justified by the underlying medical opinion to which I have already referred but, in any event, would only, it seems to me, retread substantially old ground.”
23.	The judge, finally, therefore turned to consider Mr Turner’s submission that the court should, in the circumstances, take steps to ensure the enforcement of the original return order. In this regard the judge set out his reasoning at paragraph 34 of the judgment onwards:
“34. It is, therefore, submitted that I ought to ensure that the original order is properly enforced. I am reminded that this is not an entirely welfare-based jurisdiction but of course there is a strong welfare element involved, given that the reality is that the lives of children are in play. The essential question is one of jurisdiction either in the courts of England and Wales or in Canada and so what Mr Turner says is that unless the mother can point to clear evidence of intolerability so that the exception is made out, the court should, nevertheless, adhere to its original order and ensure that it is carried out.
35. I have sympathy with that submission. I accept of course that the basis, as it is described in the recital, was that the mother would return with the children to Canada and then take whatever step she thought appropriate in that jurisdiction to regularise the position but it seems to me wholly improper for it now to be mother’s position that “I will not go” and, therefore, the order simply will not take effect. The question of intolerability, it seems to me, is answered plainly as was shown in his short examples from the evidence of the relationship that exists between the father. It is to be recalled that I was not invited to nor did I have to consider that a return with the father would be unconscionable or intolerable. It was, as the mother put her case at the end, that she was prepared to return. Of course, then, the court dealing with the practical reality rather than the theory, devised the order which I have described. That may be, as has been accepted, the preferable, practical situation but the obverse of that is not that if preferable is unavailable then the alternative is intolerable. That simply does not follow and I am satisfied on the evidence before me that that is the case.
36. Accordingly, since the mother now either will not or she would say, although I have reservations about this, cannot go, then the court has to do something else in order to give effect to paragraph 6 of the un-appealed order which remains, as Mr Turner points out, a clear direction for the return of the children.
37. Equally, as has been submitted, the question of intolerability is a question in relation to the children the subject of the proceedings and not to the residential or either parent. They of course cannot be divorced because the children do not live their lives in compartments but in the wider family but I take that into account in making the decisions that I do.”
24.	The judge then, having reminded himself of the general policy of the Convention, made the orders which are now under appeal. 
The mother’s appeal
25.	Before turning to the grounds of appeal, it is right to record that the issue of the court’s jurisdiction is not in dispute before this court. Understandably, because of the acceptance made by the judge in her favour, it plays no part in the mother’s appeal. Although the existence of the jurisdiction is not accepted by Mr Turner, there is no Respondent’s Notice. Both parties, therefore, accept that the issue of the court’s jurisdiction is not before this court and in so far as arguments may be made as to its existence they will, as Mr Setright said, have to wait for another day.
26.	The mother relies upon four grounds of appeal which may be summarised as follows:
i)	The judge was wrong to base his ruling on the mother’s set aside application upon the evidence that she had filed prior to the 15 February hearing when the mother’s application was for directions including the commissioning of further evidence in support of her application;
ii)	The judge was in error in failing to identify the test that he applied when determining the mother’s set aside application;
iii)	The judge was wrong to refuse the mother’s application to instruct a fresh expert;
iv)	The judge was wrong to hold that it would not be intolerable for the children to return to Canada without their mother, particularly bearing in mind the evidence before the court at the previous hearing in relation to the situation that the children would encounter in Canada if their mother did not return.

27.	In oral submissions Mr Setright accepted the circularity of ground one in that it pre-supposed that the judge was in error in failing to adjourn the case in order to obtain further expert evidence as asserted in ground three. Mr Setright did not submit that the extant medical evidence was, of itself, sufficient to justify granting the set aside application or, in the context of the appeal, that the judge was plainly wrong in holding to the contrary.
28.	With respect to ground two, Mr Setright, relying upon paragraph 60 of Mr Gration’s skeleton argument, submitted that the test on an application for leave to apply to set aside was that the application should make out a prima facie case that there had been a change of circumstances Mr Setright accepted that the test applied by the judge is contained in paragraph 27 as follows:
“In short, I am not satisfied that that material, which is the only material before the court, is of such moment or significance as to be a proper basis for the implementation of a process which would lead to a substantial revisiting of earlier decisions.”
29.	Asked by the court to explain the difference between the test stated by the judge and that argued for in the skeleton, Mr Setright simply asserted that the judge was wrong. With respect to ground three, relating to the application to instruct a fresh expert, it is accepted that the relevant test for the court is contained in the Children and Families Act 2014, s.13(6), to the effect that the court may only give permission for the instruction of an expert “if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.”  The appellant’s case is that the instruction of an expert was necessary to allow for proper consideration of whether or not there had been a deterioration in the mother’s health following the September judgment and, therefore, a proper consideration of whether or not there had been a change of circumstances. The mother’s case is that the report of Dr W established a prima facie case that there had, indeed, been a change of circumstances and, therefore, the judge should have held that it was necessary to obtain a further expert report.
30.	Mr Setright, rightly, used the fourth ground of appeal as a basis for crystallising the major argument put forward by the mother, which is that the outcome now embodied in the court order, namely that the children may return to Canada without their mother, required further investigation by the court within the context of Article 13(b) and that the judge was in error in summarily dismissing the mother’s set aside application without conducting such an investigation.
31.	Mr Setright accepted that the force of this submission turned to a large extent upon whether or not, at the hearing before the judge, the mother was indeed going to refuse to go to Canada with the children if the court continued to hold to the return order. On this point Mr Setright’s submission to this court had to be, as he explained, subtle and nuanced. Whilst the judge plainly worked on the basis that the mother either would not or could not travel to Canada (paragraph 36), Mr Setright stressed that it was never said to the judge during the hearing that the mother would not return to Canada. Mr Setright stated that he could not, therefore, submit that the judge was either right or wrong to assume that the mother would not, or could not, travel with the children.
32.	In terms of Article 13(b) Mr Setright submitted that the judge fell into error in the concluding sentences of paragraph 35, where he simply held that it did not follow that, if the preferable plan of the mother retuning to Canada was not available, the alternative was intolerable. This case, which included consideration for the welfare of the children, was such as positively to require the judge to consider the effect of the change of circumstances on the children and the judge was in error when he avoided engaging with the separation point by adopting a slightly mechanistic approach and relying upon the policy principles of the convention.
Discussion
33.	As ground one turns upon the court’s decision to refuse to instruct a further expert, it is logical to consider ground three, which is the challenge to the judge’s refusal of that application, first. 
34.	I can take this point shortly. In the context of proceedings which had already included a five-day hearing before the judge at which oral evidence was heard from two experts, it was likely that very cogent evidence would be required before the court might sanction the instruction of yet a further expert on the same issue. The only evidence that the mother’s mental health had significantly altered arose from the one episode at the end of November following receipt of the sealed court order. The diagnosis proffered by Dr W, namely PTSD, was the same as that advised by the earlier experts. Given that the test required the court to refuse the application unless a further expert was “necessary”, the judge was plainly justified in querying what, if any, new insight might be gained by any further investigation.
35.	Further, the judge was entitled to be sceptical as to the weight to be attached to the mother’s apparent collapse and Dr W’s report, given his previous adverse findings against her and the timing of her collapse.
36.	This was a case management decision taken by an experienced family judge who had a detailed understanding of the parties to these proceedings and, in particular, the extant evidence as to the mother’s mental health. An appeal could only succeed against his refusal to permit the instruction of a further expert if there was cogent evidence to demonstrate that such an instruction was indeed “necessary” and that no judge could have reasonably refused the mother’s application. The evidence in the present case falls a long way short of achieving that quality. The appeal on ground three must, therefore, fail.
37.	It follows that ground one must now be evaluated on the basis that the mother’s application to adduce further medical evidence had failed. In the circumstances, given that ground one relied heavily on the soundness of ground three, ground one must also fail. 
38.	Contrary to the assertion made in ground one, it must surely be the case that, at the first hearing of an application to set aside a final order, the court evaluates the quality of the evidence that has been filed in support of that application. In the context of the medical evidence alone (and therefore ignoring for these purposes the mother’s separate case that, irrespective of the medical advice she might not travel to Canada) the judge was fully entitled to hold that the evidence, such as it was, of the mother’s mental equilibrium in November and December 2017 was insufficient to establish a prima facie case upon which an order to set aside the final order might be based. Indeed, Mr Setright, realistically, did not submit to the contrary.
39.	So far as ground two is concerned, having identified the test applied by the judge at paragraph 27 of the judgment and compared that to the appropriate test argued for in paragraph 60 of the appellant’s skeleton argument, it is difficult to detect any real distinction between the two. By looking to see whether the evidence produced by the mother was “of such moment or significance as to be a proper basis for the implementation of a process which would lead to a substantial revisiting of earlier decisions”, the judge was approaching the issue correctly. He was not looking to determine the mother’s application on a final basis, on the ground that she must succeed at the end of the day, rather, he was contemplating whether the evidence was sufficient to justify re-opening the proceedings for reconsideration. In the circumstances I can detect no basis for holding that he was in error.
40.	Turning to the final ground of appeal, and the main thrust of Mr Setright’s submissions, which are to criticise the judge for not engaging in an evaluation of the children’s return to Canada without their mother from the perspective of their welfare, Mr Setright’s subtle and nuanced description of the mother’s position before the judge is of importance. If, contrary to what the judge seems to have assumed, the mother was simply presenting the medical evidence but, expressly, not saying “yes” or “no” to the question of whether she would, in fact, return to Canada, then the assertion that there had been a change of circumstances may fall away in any event. Further, despite what he said in paragraph 36, the judge’s order afforded the mother a three week window to return to Canada with the children herself, before the father was empowered to collect them from her care. 
41.	Mr Setright’s submission that the judge was wrong not to engage from a welfare point of view with the prospect of the children returning to Canada without their mother, cannot sit on its own in a vacuum. The submission could only have traction if it was supported by evidence, not only that the children’s welfare might be adversely affected by a move to Canada without the mother, but that that adverse impact might be of sufficient gravity so as to meet the criteria in Article 13(b). In that regard the mother’s case was in difficulty. She had not run the argument before the judge that Article 13(b) would be satisfied if the children were in the father’s care. This court’s enquiry whether there was evidence to that effect before the judge did not produce any positive response in terms of references to the court bundle.
42.	Although the judge’s conclusion in the latter part of paragraph 35 may appear “mechanistic”, to adopt Mr Setright’s phrase, it is clear, looking at the judgment as a whole, that the judge was not simply saying that the withdrawal of Plan A did not mean that Plan B was necessarily tolerable and no more. I read the judge’s conclusion as holding that there was insufficient material in the evidence as a whole to identify the potential for Article 13(b) to be engaged if the mother declined to return to Canada and the children had to travel there without her.
43.	In the circumstances, and, in particular, where it is now plain to this court in a way it may not have been plain to the judge that the mother was neither saying “yes” or “no” to the ultimate question of whether she would return, the judge was justified in approaching the issue as he did and there was no requirement upon him to investigate the issue of intolerability further on the facts of this case.
44.	It must, therefore follow, if my Lords agree, that this appeal is dismissed with the result that the judge’s order with the return to Canada must stand albeit that a further window during which the mother may choose to go to Canada with the children herself will apply before the father is entitled to make those arrangements himself.
Lord Justice Gross
45.	I agree
Lord Justice Coulson
46.	I also agree