Tf v Pj (Reversal of Judgment)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Mostyn |
| Judgment Date | 10 April 2014 |
| Neutral Citation | [2014] EWHC 1780 (Fam) |
| Docket Number | Case No: FD 13 P 02034 |
| Court | Family Division |
| Date | 10 April 2014 |
[2014] EWHC 1780 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Mostyn
Case No: FD 13 P 02034
Mr. Henry Setright QC and Michael Gration (instructed by Messrs. Hanne & Co.) appeared for the Applicant.
Mr. Christopher Hames (instructed by Messrs. Bindmans LLP) appeared for the Respondent.
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.
The mother appealed and on 26th February 2014 the Court of Appeal, comprising Sullivan LJ, McFarlane LJ and Lewison LJ, dismissed her appeal.
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.
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 201The 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.
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."
The question I have to decide is whether I have power to revoke this order at all.
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.
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.
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.
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."
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."
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."
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).
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.
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.
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.
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.
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...
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