England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/04/2014

MR. JUSTICE MOSTYN:

1. On 29th November 2013 Ms. Alison Russell QC, as she then was, ordered the return of RF, a boy who was born on 27th June 2010, to Italy pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985.
2. The mother appealed and on 26th February 2014 the Court of Appeal, comprising Sullivan LJ, McFarlane LJ and Lewison LJ, dismissed her appeal.
3. The mother now applies for the order of Ms. Russell QC to be revoked. She alleges that since the order made by her and, more particularly, since the order made by the Court of Appeal she has had a total psychological and psychiatric collapse.
4. A single joint expert report in relation to her psychiatric state was ordered and she was seen on 2nd April 2014 by Dr Cosmo Hallstrom, who has reported to the court on 3rd April 2014. The mother says that his conclusions in that report constitute evidence of a supervening change of circumstances which destroys the basis on which the previous order of 29th November 2013 was made. On that basis she applies to this court today, on 10th April 2014, for the order made previously on 29th November 2013 to be revoked.
5. It is said by Mr. Setright QC, on behalf of the father, in his customarily thorough written submission, that at paragraph 13(a):

"There is no jurisdiction in the High Court to vary or set aside a substantive order made by another High Court judge. Such jurisdiction lies only with the Court of Appeal."

6. The question I have to decide is whether I have power to revoke this order at all.
7. The skeleton arguments of both counsel did not, when I read them, rather to my surprise, make reference to the decision of the Supreme Court of Re L and B (Children) [2013] UKSC 8, where judgment was given on 20th February 2013. I will return to that decision shortly.
8. The question of setting aside orders made in family proceedings by a judge of equivalent jurisdiction to the judge who made the original order was described by Munby J, in L v L [2008] 1 FLR 26, as a quagmire.
9. In R v R [2008] 2 FLR 374, Bodey J concluded that the High Court had power to set aside an order made by a judge of equivalent jurisdiction in financial proceedings and he identified the source of the power as the inherent jurisdiction of the High Court.
10. However, one has noticed that by reference to the recent decision of Gohil v Gohil (No 2), that the Court of Appeal has recently stated that in a non-disclosure case, initiated and determined under the procedure applicable before the advent of Family Procedure Rules, that the High Court had no power to set aside, on the grounds of non-disclosure, an order made by a judge of equivalent jurisdiction. On any view the position was, prior to the advent of the new rules, extremely confused. The rules came into force in April 2011 and they provide, in rule 4.1(6):

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

11. That phraseology mirrors exactly the equivalent rule under the Civil Procedure Rules, rule 3.1(7). There is one exception provided for in the rules and practice direction 30A, paragraph 14.1, which states:

"Where a Consent Order has been made by a district judge then the only way of challenging it is by appeal."

12. Under the Civil Procedure Rules 3.1(7) it has been concluded in a number of cases that notwithstanding that the rule refers to an order of the court made under these rules, that the order which can be set aside is a final order. This much is clear from the decision of Roult v North-West Strategic Health Authority [2009] EWCA Civ 444. In that case Hughes LJ stated at paragraph 15:

"I agree that in its terms the rule is not expressly confined to procedural orders."

13. The White Book reveals a number of authorities where final orders have been successfully challenged under CPR rule 3.1(7). However, in Roult it was stated that if the ground of challenge is a subsequent unforeseen event which has destroyed the assumption on which an order has originally been made, it is not appropriate for the original court to exercise its powers under CPR 3.1(7).
14. That authority was relied on by Gloster LJ in Cart v Cart [2013] EWCA Civ 1006, which was an application for permission to appeal but which has found its way on to the BAILII website, notwithstanding that it has not been certified pursuant to paragraph 6 of the Practice Direction: Citation of Authorities [2001] 1 WLR 1001.
15. In that authority, Gloster LJ ventured the opinion that Roult prevented an application, in a financial remedy case following divorce, to challenge the original order on the grounds in Barder v Caluori [1988] AC 20, namely that there has been a supervening event which destroys the fundamental assumption on which the original order was made.
16. I have to say that even if the Supreme Court had not given its decision in re L and B I would not agree with that analysis. It is not necessary for me in this judgment to explain why.
17. The question that arises in these Hague proceedings is whether the power, which has been accepted to exist in civil and in financial proceedings, for a court to set aside an order made by equivalent jurisdiction extends to proceedings under the 1980 Hague Convention. Proceedings under the 1980 Hague Convention are quintessentially -- this is to state the obvious -- proceedings about children. They may be sui generis in the field of children law in the sense that they are dealt with summarily and in the sense that the welfare of the child in question is not the paramount consideration, but they are about children none the less and, as the Supreme Court has emphasised in a number of cases, the welfare of the child in those proceedings is a primary consideration, as indeed it must be under the United Nations Convention on the Rights of the Child.
18. This leads me to consider the case of re L and B. In that case the decision in question recorded findings of fact made in care proceedings concerning two small children. A fact-finding hearing in proceedings under Section 38 of Children Act 1989 had been held by Judge Penna in Manchester and she had made findings of fact. The question arose whether, in the light of a change of judicial mind, the judge had power to revisit her factual findings. The Supreme Court concluded that in circumstances where the order had not been sealed she plainly had. However, in a section of her judgment commencing at paragraph 32 and headed "What if the order had been sealed", Lady Hale considered at some length whether there was power to discharge or revoke an order containing findings of fact in such proceedings. In paragraph 37 she said this:

"Both the Civil Procedure Rules and the Family Procedure Rules make it clear that the court's wide case management powers include the power to vary or revoke their previous case management orders: See CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 (SI 20 10/2955). This may be done either on application or of the court's own motion: CPR r 3.3(1), rule 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else's) orders which led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.

38. Clearly, that power does not enable a free-for-all in which previous orders may be revisited at will. It must be exercised "judicially and not capriciously". It must be exercised in accordance with the over-riding objective. In family proceedings, the overriding objective is "enabling the court to deal with cases justly, having regard to any welfare issues involved": Rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments. The facts of in In re M and MC [2003] 1 FLR 461 are a good example. At the fact finding hearing, the judge had found that Mr C, and not the mother, had inflicted the child's injuries. But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them. The Court of Appeal ruled that, at the next hearing, the judge should subject the mother's apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings.

39. The question is whether it makes any difference if the later development is simply a judicial change of mind. This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear-cut."

19. Following that, Lady Hale then analysed in some detail whether a change of mind or, as she put it, a judicial tergiversation was alone sufficient to justify invocation of an application to set aside under rule 4.1(6). Having debated the points on both sides she stated at paragraph 45:

"The point does not arise in this case and it was not fully developed in the arguments before us. The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it. In our view the preferable solution would be to avoid the situation arising in the first place."

20. The conclusions that I draw from these pronouncements from the very summit are these. First, although the rule refers to the court having a power to vary or revoke an order made under the rules, the power is not confined only to procedural or case management orders made under the rules. It applies whether in the civil sphere or in the family sphere and, within the family sphere, whether in children proceedings or financial remedy proceedings it applies to final orders.
21. The only relevant circumstances thus far identified where the rule can be invoked are where there has been non-disclosure or a significant change of circumstances. This much is clear from the civil authorities, of which the most prominent is Tibbles v SIG Plc [2012] 4 All ER 259, recently strongly approved in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537. It applies in ancillary relief proceedings, as the recent decision of Karim v Musa [2012] EWCA Civ 1332 confirms and it applies, in my judgment, to all children proceedings whether they are care proceedings, whether they are private law children proceedings or whether they are proceedings under the Hague Convention.
22. I therefore do not accept Mr. Setright's argument that Lady Hale in re L and B was intending to confine her comments only to care proceedings. In my judgment they apply across the board and are not even confined to children proceedings, notwithstanding her comment in paragraph 41 that:

"In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family."

23. It is important that the court should recognise that there should be consistency in the application of identical words to situations across the board and, in my judgment, the provisions of rule 4.1(6) empower this court, provided that either non-disclosure or a significant change of circumstances is demonstrated, to make an order revoking the original order of 29th November 2013.
24. Following the ruling that is set out above, I have heard further submissions from counsel as to whether there has been in this case a sufficiently material change of circumstances to justify the setting aside of the order of 29th November 2013.
25. The change of circumstances principally relied on by Mr. Hames is the diagnosis of the mother's mental health made by the jointly instructed psychiatrist Dr. Cosmo Hallstrom, but that is not the only string to his bow. In his skeleton argument at paragraph 51, in addition to relying on what he describes as the dramatic change in the mother's mental condition, he relies on a number of other matters which he says constitute material changes in circumstances, as follows:

i) The mother, he says, is now unable to return to Italy. R has always been in the primary care of the mother, assisted by his maternal grandmother in recent months. The father has had little contact, the mother would say by his own conduct, and is unable to provide care himself. A separation from and placement in the hands of a comparative stranger who is found to be violent was not envisaged by this court in November. Indeed, the court was then anxious to ensure there was no separation.

ii) The father has materially changed his position in that he, for the first time, advocates separating R from his primary carer.

iii) It is highly unlikely that R would voluntarily leave his mother's care without considerable coercion. There is a grave risk that R would suffer far more than the usual rough and tumble discomfort and distress which every child should put up with.

iv) The mother no longer has a home, she has no employment and R has no nursery place.

26. Mr. Hames frankly accepts, however, that the principal matter on which he relies is the diagnosis of Dr. Hallstrom. I do not set it out here. In order to put it in context it is necessary to remind myself of the very limited scope of evidence relating to the mother's mental health that was before the court on 29th November. That is set out by McFarlane LJ in his judgment in the Court of Appeal on 13th March in paragraphs 21 to 30.
27. It cannot be disputed that the scope of the evidence relating to the mother's mental health previously before this court was extremely limited, so much so that McFarlane LJ stated in paragraph 37:

"In my view the material before the court, even including the instructions given on the morning of the hearing, was insufficient to justify further investigation."

28. Mr. Setright makes a fair point that there was ample time between 29th November and the hearing of the appeal on 26th February for the mother to have obtained further expert evidence and to have sought to have adduced it in the appeal, pursuant to the principles in Ladd v Marshall, as applying in their less rigorous form in appeals concerning children.
29. Why that step was not taken in that period I have not been informed, but the fact that it was not does not in my opinion alter the relevance of such evidence once it has come into being for the purposes of an application made under rule 4.1(6) of the Family Procedure Rules 2010.
30. The psychiatric report here was prepared on joint instructions, with the authority of this court, following the mother having intimated her intention to make this application. The report, which is done on behalf of both parties and for the benefit of the court, is extremely comprehensive. It would extend this judgment unnecessarily were I to read into it large tracts of a document that runs to 22 pages, suffice to say that Dr. Hallstrom has diagnosed the mother as being seriously mentally ill. He says in paragraph 5 that the cause of her condition is multifactorial, but there is presumably a genetic basis to her condition as well as a developmental component.
31. It therefore follows that Mr. Setright is right to say that her condition was, at least in part, latent within her at the time of the hearing, but it also must be recognised that by virtue of the diagnosis that is made by Dr. Hallstrom that there has been a significant developmental element. In paragraph 17 Dr. Hallstrom says:

"Despite her underlying vulnerabilities the obvious trigger for her current significant deterioration is her anxiety about having to return to Italy together with R."

32. In paragraph 18 he says:

"It might be argued that her condition has occurred whilst she is in the UK, but I think the trigger for it is not so much being in the UK as the fear of being returned to Italy. Anxiety is predominantly an emotion associated with the fear of what may happen in the future as opposed to depression, being an emotion associated with what has happened and loss. I do not think that the mother is fabricating her symptoms or exaggerating her illness."

33. In answer to certain specific questions, of which the first was does the mother suffer from a mental illness or disorder, he says at paragraph 20:

"The diagnosis that I make is one of an anxiety disorder with panic and associated depression."

34. He says at paragraph 22:

"It seems pretty clear to me that the mother is now primarily anxious. She feels petrified and is highly emotional. Her anxieties are exacerbated by her current situation and her fear of being returned to Italy. This is superimposed on a long-standing tendency to an anxious predisposition."

35. At paragraph 24:

"I would place her current level of severity as severe [which seems slightly tautological but I am sure I know what he means]. I consider her condition to be genuine."

36. Then in answer to questions as to whether there has been a change in the mother's mental health since 29th November he said at paragraph 25:

"The trigger to do with the deterioration in mother's mental health is her fear of a return to Italy. Her condition deteriorated on 29th November when the return order was made. It seems that her panic attacks have worsened as have her nightmares."

37. At paragraph 29:

"There is evidence of a deterioration in her condition prior to the 29th November hearing, but this was all part of the prelude and the build up prior to the court hearing."

38. He was then asked what would be the impact on the mother's mental and emotional health were she to return to Italy. In 28 he says:

"All the evidence points to mother suffering a further deterioration in her mental ill health if she were to return to Italy."

39. He said at 29:

"She contemplates suicide but I think that is unlikely to happen whilst she is caring for R. She may well make a further suicide attempt if R were to be removed from her care. Bearing in mind her family history of suicide I would be concerned over the real risk of suicide in her case."

40. At 31:

"If she were to return to Italy then, following a likely further crisis and deterioration in her mental health, she would lapse into a state of despondency and depression and her condition will gradually settle into the state of chronic depression and despondency that she had prior to coming to the UK."

41. At 32:

"If R were to be removed from her care then I think there would be a significant deterioration in her mental state."

42. This evidence goes far beyond anything that was before Ms. Russell QC or the Court of Appeal. To my mind it represents a sea change in the relevant evidence appertaining to the mother's mental health. That alone, in my opinion, justifies a finding of a material change of circumstances. However, I also find that the other matters relied on by Mr. Hames themselves also amount to material changes of circumstances, in particular the fact that the father is now advocating separating R from his mother, in contradistinction to his case hitherto.
43. For these reasons I am satisfied that the threshold criterion for a successful application under rule 4.1(6) is met. In these circumstances the order of 29th November 2013 is set aside