Strand, London, WC2A 2LL
B e f o r e :
- and –
|G and H
||Second and Third Respondents
|(Power to Set Aside Return Order)
The First Respondent appeared in person
Ms Alev Giz (instructed by Dawson Cornwell) for the Second and Third Respondents
Hearing date: 9 October 2017
Crown Copyright ©
Mr Justice MacDonald:
i) The children had expressed views in favour of remaining with their mother in North Carolina and against returning to the care of their father. This assertion was supported by letters from each child stating their wish to remain with the mother;
ii) No clarification had been provided by the Children's Guardian as to whether he had consulted the children before making an application for a return order on their behalf in circumstances where the mother contended the children were each 'Gillick' competent.
iii) Any application for enforcement of the order of Her Honour Judge Harris should await the outcome of the mother's appeal of that order.
iv) The children were now habitually resident in the jurisdiction of the United States and the English court accordingly no longer had jurisdiction. Further, and in any event, the United States represented the more convenient forum to deal with the issues arising in this case.
v) In any event, the children were now putting down roots in the United States and were increasingly integrated in that jurisdiction.
vi) The appropriate means of determining whether the children should return to the jurisdiction of England and Wales was by way of the 1980 Hague Convention, in respect of which the mother would rely on defences under Art 13 of the same;
"AND UPON the Respondent mother ('the mother') not attending the hearing or being represented but the Court receiving a letter from the mother's solicitors, Irwin Mitchell, dated 13 September to which was attached the mother's skeleton argument filed by the mother in support of her application for permission to appeal the order made by Her Honour Judge Harris dated 9 August 2017, the position statement filed on her behalf for the hearing of her application for a stay of the said order on 8 September 2017 and letters written by the children following the making of the order dated 9 August 2017 and in which the mother's position and response to the application before the court today was fully set out.
AND UPON the Court being satisfied that the mother and her solicitors were given notice of the application made today on behalf of the children and were served with the application and supporting documentation."
i) Towards the beginning of the transcript Francis J addressed the issue of the children's wishes and feelings and enquired about the mother's assertion that clarification had not been provided by the Children's Guardian as to whether he had consulted the children before making an application for a return order on their behalf in circumstances where the mother contended the children were each 'Gillick' competent. Thereafter Ms Giz addressed the judge on the issue of the children's wishes and feelings, describing the situation as a "complex one" and that the Children's Guardian would see "very little benefit" in speaking to the children, Ms Giz implying that the fact they were in the care of the mother may influence their views.
ii) Francis J further examined the argument of the mother that her application for permission to appeal militated against the making or return orders before the determination of that appeal. In doing so, he expressed the view that were the mother to be granted permission to appeal it was difficult to see how the application for a return order could succeed. The judge also expressed the view that, having read the judgment of Her Honour Judge Harris, it was difficult to see how it could be said that Her Honour Judge Harris was, as Francis J expressed it, "plainly wrong" in her decision.
iii) Francis J also considered the question of habitual residence and the arguments raised by the mother in that regard with respect to the children becoming integrated in North Carolina. In response to the judge asking Ms Giz whether, in the absence of the mother attending the hearing, there was any case that could be put forward to support the proposition that the children were habitually resident anywhere other than England and Wales, Ms Giz drew the judge's attention to mother's Skeleton Argument in support of her application for permission to appeal, which articulated the arguments that the children were now habitually resident in the United States. It is clear from the transcript that Francis J was satisfied that the children remained habitually resident in the jurisdiction of England and Wales.
iv) Francis J was also made aware of the father's decision now to remain in this jurisdiction until matters in respect of the children had been resolved.
"A. The Court is of the view that the children, [G and H] were habitually resident in England and Wales at the date when Her Honour Judge Harris gave her Judgment and made her Orders, namely 9 August 2017 and continue to be habitually resident in England and Wales;
B. The children appear to have been wrongfully retained by the mother in North Carolina;
C. The retention by the mother of the children in North Carolina appears to be in direct breach of the Order made by Her Honour Judge Harris dated 9 August 2017 (as amended on 11 August 2017);
D. No stay of the order of Her Honour Judge Harris dated 9 August 2017 (as amended on 11 August 2017) has been granted and the mother's application for a stay was refused by Mr Justice Baker on 8 September 2017;
E. It appears to the Court that there is no jurisdiction for the Court in North Carolina in respect of the child and that the proceedings commenced in North Caroline should be stayed."
i) The children have expressed a wish not to go to live with their father pursuant to the order of Her Honour Judge Harris in circumstances where the children are of an age where their views should be given significant weight.
ii) The mother's application for permission to appeal has been listed for an oral hearing on 22 November 2017. Mr Gupta accepted that the application for permission to appeal was issued prior to 14 September 2017;
iii) The children are at school in the United States and have now been settled in that jurisdiction and integrated in family life there for over two months;
iv) The father has now determined not to go to the United States and is remaining in England pending the determination of the mother's appeal.
"Applications for new trial
17.-(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 is by a judge alone and no error of the court at 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."
" The modern story begins with the Judicature Acts 1873 (36 & 37 Vict c 66) and 1875 (38 & 39 Vict c 77), which amalgamated the various common law, chancery and doctors' commons jurisdictions into a single High Court and created a new Court of Appeal for England and Wales. In In re St Nazaire Co (1879) 12 Ch D 88, the Court of Appeal decided that there was no longer any general power in a judge to review his own or any other judge's orders. Malins V-C had permitted a petition to proceed which sought to vary an earlier order which he had made and which had been unsuccessfully appealed to the Court of Appeal. The Court of Appeal held that he had no power to do so. Jessel MR explained that the Judicature Acts had changed everything. Before they came into force, the Lord Chancellor, Vice-Chancellor and Master of the Rolls had power to rehear their own decisions and, indeed, the decisions of their predecessors. He remarked that "the hope of every appellant was founded on the change of the judge": p 98. (An example of Jessel MR revisiting one of his own orders is In re Australian Direct Steam Navigation (Miller's Case) (1876) 3 Ch D 661.) But such an application was in the nature of an appeal and jurisdiction to hear appeals had now been transferred to the Court of Appeal. Thesiger LJ added that, "whatever may have been the practice in the High Court of Chancery before the Judicature Act as to the review of their decisions or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to that in the Common Law courts" 12 Ch D 88, 101. The court's conclusions harmonised the practice in all Divisions of the newly amalgamated High Court."
"GENERAL CASE MANAGEMENT POWERS
4.1 The court's general powers of management
(1) In this Part, 'statement of case' means the whole or part of, an application form or answer.
(2) 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.
(3) Except where these rules provide otherwise, the court may –
(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);(b) make such order for disclosure and inspection, including specific disclosure of documents, as it thinks fit;(c) adjourn or bring forward a hearing;(d) require a party or a party's legal representative to attend the court;(e) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;(f) direct that part of any proceedings be dealt with as separate proceedings;(g) stay the whole or part of any proceedings or judgment either generally or until a specified date or event;(h) consolidate proceedings;(i) hear two or more applications on the same occasion;(j) direct a separate hearing of any issue;(k) decide the order in which issues are to be heard;(l) exclude an issue from consideration;(m) dismiss or give a decision on an application after a decision on a preliminary issue;(n) direct any party to file and serve an estimate of costs; and(o) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.
(Rule 21.1 explains what is meant by disclosure and inspection.)
(4) When the court makes an order, it may –
(a) make it subject to conditions, including a condition to pay a sum of money into court; and(b) specify the consequence of failure to comply with the order or a condition.
(5) Where the court gives directions it will take into account whether or not a party has complied with any relevant pre-action protocol.
(6) A power of the court under these rules to make an order includes a power to vary or revoke the order.
(7) Any provision in these rules –
(a) requiring or permitting directions to be given by the court is to be taken as including provision for such directions to be varied or revoked; and(b) requiring or permitting a date to be set is to be taken as including provision for that date to be changed or cancelled.
"(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order".
As with the FPR 2010, the CPR 1998 were not made under s 17(2) of the Senior Courts Act 1981, but rather were made under s 1 of the Civil Procedure Act 1997.
"It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue—an 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. This order was a final disposal of many of the issues between the parties. It was in no sense a case management order, and the fact that there remained other issues which did need managing towards future disposal does not alter that position"
" Both the CPR 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 FPR r 4.1(6). This may be done either on application or of the court's own motion: CPR r 3.3(1), FPR r 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 Co 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.
 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 overriding 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 re M and MC  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.
 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."
"In the light of this survey of the authorities, I conclude that the decision in Roult's case will not bear the weight of the argument that Mr Brunsdon Tully seeks to derive from it. In common with Mostyn J in In re F  1 WLR 4375, I read the decisions of the Court of Appeal in Karim's, Sharland's and Gohil's cases as demonstrating that FPR r 4.1(6) continues to permit what had long been established, namely that an application such as the one being made here by the wife can be made to the judge at first instance."
"As the new FPR r 9.9A provides specifically for the power of the court to set aside a financial remedy order (as opposed to any other type of order) then it rather than FPR r 4.1(6) should, as of 3 October 2016, be invoked where such relief is sought. FPR r 4.1(6) will continue to govern any other applications to set aside which are governed by the Family Procedure Rules."
It would appear from context that the "other applications" to which King LJ stated FPR r 4.1(6) would apply were applications for orders other than financial remedy orders, rather than just financial remedy orders made before 3 October 2016.
" It was conceded by the father before Mr Cohen QC that, in an appropriate case, the High Court can set aside a return order made under the 1980 Hague Convention and Mr Gupta QC did not seek to argue otherwise on appeal. Had he sought to do so, he would, of course, have had to surmount the obstacles which stand in the way of those who seek to raise a new point only on appeal (see, for example, the notes in Civil Procedure 2016, vol 1, para 52.8.2). As it was the case of both the mother and L that the judge had power to make the order that he did, we therefore received no submissions questioning that proposition. An argument to the contrary was mounted in In re H (A Child)  EWCA Civ 988 (see paras 9–11) but, for the reasons set out in paras 12–14 of In re H, it was unnecessary to rule upon it, the order in that case being a wardship order which could be varied by the first instance court if the child's welfare so required.
 In the absence of comprehensive submissions, I would be reluctant to make definitive pronouncements upon the subject of the existence, and, if it exists, the nature, of the High Court's power to set aside 1980 Hague Convention return orders. The one reported example of the exercise of such a power is the decision of Mostyn J which was cited by Mr Cohen QC in this case, namely In re F (A Child) (Return Order: Power to Revoke), where Mostyn J relied upon FPR r 4.1(6). However, although I am not prepared to hazard a view as to whether the power actually does exist, I do acknowledge that In re F and the instant case show that it is plainly desirable that there should be such a power in the High Court, albeit that it can be anticipated that it would rarely be used. If an application to set aside an order made under the 1980 Hague Convention could only be made to the Court of Appeal, this would have considerable practical disadvantages which would be likely to work against the interests of the children whose welfare should be served by the Convention. The Court of Appeal is not well suited to hearings of the type that would be required as, for example, Thorpe LJ explained in the case of Walley v Walley  EWCA Civ 910;  3 FCR 35 at para 14. Although every effort is made to accommodate Hague cases speedily in the Court of Appeal, any application would have to take its turn in an already very over-charged list. It would require determination by two or three judges rather than one. The only appeal route from the Court of Appeal's decision would be to the Supreme Court. And it would, furthermore, not be feasible for the same judges to deal with the application to set aside and any resulting re-hearing of the original return application."
" In any event, I am not persuaded as to the merits of the father's arguments which, it seems to me, fail to recognise what Judge Bromilow's role really was at this stage in the proceedings. By the time that the mother's application reached Judge Bromilow, it was characterised as an application to set aside the July consent order. It is perhaps not surprising that this characterisation generated arguments about whether a first instance judge is entitled subsequently to revisit his own decision or that of another judge of the same level, and as to the technicalities that might attend an application to set aside in the High Court. However, an unfortunate consequence of this focus upon technicalities appears to have been that the true nature of the court's task was obscured. Judge Finnerty's order was made in the context of wardship, and A's best interests were therefore the determining consideration on that day. To use the terminology adopted by Mr Williams QC (who with Ms Jacqueline Renton represented A in the appeal) in his oral submissions, it was a welfare order. The parents' cross-applications which ultimately came on for trial before Judge Bromilow were also made within the wardship proceedings. The situation was not, therefore, the same as that in proceedings under the 1980 Hague Convention, and authorities dealing with such proceedings (as does Re M (Abduction: Undertakings)) are not of assistance. Equally, reliance on Re M (Abduction: Non-Convention Country) may not be helpful either because, although this was not a Hague Convention case, the court still applied Hague Convention principles. That would not happen now as, in Re J (Child Returned Abroad: Convention Rights)  UKHL 40  2 FLR 802, the House of Lords held that the outcome must be dictated by the welfare of the child and that the specialist rules and concepts of the Hague Convention should not be applied by analogy in non-Convention cases.
 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.
 Although counsel for the father (Mr Vine QC, who did not appear below, and Mr Bennett, who appeared in front of Judge Bromilow) seemed in writing to be advancing the case that Judge Bromilow simply had no jurisdiction to set aside the return order, after discussion during the appeal hearing, it became apparent that the argument was, in fact, more one of form than of substance. Mr Vine conceded that if the mother had made an application for variation of the July order, he could not have submitted that the court was not entitled to deal with it. His argument was based upon that not having been the form of her application. In fact, however, the mother did seek a variation of the return order (see the extract from her application form at paragraph 4 above), albeit that she confined the basis upon which this variation was sought. Furthermore, Judge Bromilow would have been entitled to vary the order of his own motion if A's best interests required it. Proceedings under the inherent jurisdiction of the High Court in relation to children are "family proceedings" (section 8(3)(a) of the Children Act 1989) and, in family proceedings, the court can make a section 8 Children Act order even if no application has been made (section 10(1)(b) ibid). And if there is any question as to whether the order sought by the mother amounted to a section 8 order, the judge was, in my view, entitled to act of his own motion in relation to his ward's best interests. Whether it is appropriate, in the exercise of these powers, to do anything other than enforce the original consent order will, of course, always depend upon the circumstances of the individual case. For example, if a party were to return to court the day after the order, unable to point to any significant changes that had taken place, he or she could not normally expect to succeed in displacing the previous day's order, and could anticipate his or her application being dispatched in very short order. But the reason why a subsequent application such as this will have foundered immediately is because that is what is required in the best interests of the child, and not because the court had no jurisdiction to entertain it."
"Application to Set Aside
 In order to deal with this issue, I need first to refer to the legal framework in respect of: (a) briefly, the court's power, at first instance, to vary or discharge orders made previously in the proceedings; and (b) the principles applicable to the exercise of any such power.
 (a) As referred to above, although this issue was not addressed by the parties we did not consider it necessary to request them to do so as the point does not require determination. However, as the judge decided that he had power to vary or discharge orders pursuant to FPR r.4.1(6) and section 31F(6) of the 1984 Act, I consider it appropriate to make brief observations with the obvious caveat that these are made in the absence of submissions.
 Questions about the extent of the High Court's power to vary or revoke orders were raised, but not decided, in Re H (Child)  EWCA Civ 988 (paragraphs 9-14) and in Re F (Children)  EWCA Civ 1253 (paragraphs 26-27). The issue was also considered by Sir James Munby P, sitting at first instance, in S v S  1 WLR 4592. One of the principal questions raised relates to the effect of section 17 of the Senior Courts Act 1981 which provides that: "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". The FPR were made under a number of statutory provisions but not, it appears, section 17(2).
 I would also note, in passing, that section 17 deals with applications after any cause or matter or any issue has been tried. This can be contrasted with FPR r.4.1(6) (and the equivalent CPR r.3.1(7)) which gives the court power to vary or revoke orders made pursuant to a power "under these rules". Although, in Roult v North West Strategic Health Authority  1 WLR 497, Hughes LJ (as he then was) said that r.3.1(7) was "not expressly confined to procedural orders" (paragraph 15), it, and FPR r.4.1(6), clearly apply to such orders.
 In addition, I would note that section 31F(6) of the 1984 Act applies only to the "family court" and not to the High Court. Accordingly, to be within its scope, a judge would have had to be sitting in the family court.
 However, for the purposes of this judgment, I will assume that the judge was right to decide that he had power to vary or revoke both procedural and substantive orders made previously in these proceedings."
"If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under CPR r 3.1(7). The circumstances in which the latter discretion can be exercised were considered by this court in Tibbles v SIG plc (trading as Asphaltic Roofing Supplies) 1 WLR 2591. The court held that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion. The discretion might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order was made; (ii) where the facts on which the original decision was made had been misstated; or (iii) where there had been a manifest mistake on the part of the judge in formulating the order. Moreover, as the court emphasised, the application must be made promptly."
"Whether it is appropriate, in the exercise of these powers, to do anything other than enforce the original consent order will, of course, always depend upon the circumstances of the individual case. For example, if a party were to return to court the day after the order, unable to point to any significant changes that had taken place, he or she could not normally expect to succeed in displacing the previous day's order, and could anticipate his or her application being dispatched in very short order."
Power to Set Aside Return Order made under the Inherent Jurisdiction
i) As I have already articulated, a return order made under the inherent jurisdiction is properly characterised as injunctive and interlocutory in character, in that it seeks to compel a parent to return the child to the jurisdiction of his or her habitual residence pending final trial of the substantive welfare issues before the court. In such circumstances, in my judgment it is doubtful whether it can be said that such an order follows a trial of a cause or matter or an issue in a cause or matter for the purposes of s 17(1) of the Senior Courts Act 1981. Within this context, I note that none of the authorities which I have cited raises a concern that the setting aside by the High Court of an interlocutory order made in the High Court might come into conflict with s 17 of the 1981 Act, even though neither CPR r 3.1(7) or FPR r 4.1(6) are made under that provision. Further, prior to the implementation of r 9.9A it is clear that there was a consensus that final financial remedy orders fell within the ambit of r 4.1(6), albeit no definitive view on the extent that this was consonant with s 17(2) appears ever to have been reached (see Gohil v Gohil  AC 849 at ).
ii) Whilst I accept that there is a basis for Ms Giz's submission that the wording of FPR r 4.1(6) tends towards suggesting the power under the rule relates to those orders made under the rules (see for example Deg-Deutsche Investitions un Entwicklungsgesellschaft MbH v Koshy  1 WLR 2434), the majority of the authorities with respect to CPR r 3.1(7) repeatedly emphasise it gives a very general power to vary or revoke an order and appears to be unfettered, subject to principled curtailment by the need to demonstrate a material change of circumstances or non-disclosure. The Court of Appeal has made clear in Norman v Norman that the interpretation placed on r 3.1(7) is equally applicable to r 4.1(6). Whilst most authorities, most notably Roult, emphasise the application of CPR r 3.1(7) to procedural and interlocutory orders, once again, I am satisfied that a return order falls within the latter category for the reasons I have already given.
iii) Whilst I am unable to share the view of Mostyn J in In Re F that the decision of the Supreme Court in In re L (Children) (Preliminary Finding: Power to Reverse) is authority for the proposition that the power to vary or revoke an order provided by FPR r 4.1(6) applies to all orders in respect of children, including final orders, the decision plainly offers support for the proposition that FPR r 4.1(6) encompasses interlocutory orders at an interim stage within proceedings, Baroness Hale expressing her views in this regard in In re L (Children) (Preliminary Finding: Power to Reverse) in the context of findings of fact reached at the threshold stage in care proceedings.
iv) Whilst not binding on me, I also bear in mind that both Mostyn J and Mr Jonathan Cohen QC (as he then was) considered FPR r 4.1(6) encompassed a power to set aside a return order, albeit one made under the auspices of the 1980 Hague Convention. Whilst in Re F (Children) Black LJ (as she then was) was not prepared to decide whether such a power existed, she considered that such a power would have manifest advantages.
v) Within this latter context, it is plain in my judgment that, in cases where no error of the court is alleged but a change of circumstances or a material non-disclosure is asserted, an application to set aside before the court of first instance under FPR r 4.1(6) is better suited to the task in hand than is an appeal to the Court of Appeal. It was recognised both in Gohil v Gohil and in Re F (Children) that, in circumstances where the exercise may involve a protracted and intensive fact-finding hearing on controversial evidence given by live witnesses and contained in a mass of documents, the court of first instance is far better placed to review its own order than is the Court of Appeal where no error on the part of the court is alleged.