[2025] EWHC 2508 (Fam)

Having regard to the need for applications under the 1980 Convention to be determined expeditiously, it is clearly important that the fact that there are a number of distinct issues which the court must resolve does not unduly prolong the process. Indeed, it may be possible, when the developments or changes relied upon are clear and already evidenced, for all four stages to be addressed at one hearing. More typically, I would expect there to be a preliminary hearing when the court decides the issues under (a) and (b), followed by a hearing at which it determines the issues under (c) and (d). These will, inevitably, be case management decisions tailored to the circumstances of the specific case.”

Discussion

M has not filed a formal application notice. However, neither Mr Powell nor Mr Basi take a point on that. They sensibly concede that M’s wish for the return order to be set aside and for these proceedings to be concluded has been known for several months, and that their respective clients have not been prejudiced by the absence of a formal application. Pursuant to FPR 18.4(2)(b), and mindful of the ‘Overriding Objective’, I dispense with the requirement for an application notice.

It is now over nine months since I made the return order on 06 December 2024. The court has overseen extensive efforts to implement it. Since the return order was made, there have been no fewer than thirteen attended High Court hearings with a further three orders made administratively. The Court of Appeal has refused four applications for permission to appeal.

As already noted, prior to 20 February 2025, there had been six attempts involving input from social workers, the Police, CAFCASS, and the Tipstaff. As set out above, a collection order was made on 17 March 2025 but the Deputy Tipstaffs’ concerted efforts to execute it on 21 March 2025 proved unsuccessful. Since June 2025, efforts have been made to rebuild trust through the promotion of indirect and direct contact. Whilst there are factual disputes, the bottom line is that these efforts have proved unsuccessful: they did not result in any meaningful contact nor in any softening of the boys’ resistance. In accordance with the court’s direction, CAFCASS met once more with the boys who both expressed their seemingly unshakeable opposition towards the SGs and a return to Ireland.

Against that background, is there any realistic prospect of the return order being implemented in the foreseeable future? On behalf of the SGs, it was suggested that M could be ordered to bring the boys to court so that the return order could then be implemented in her absence. However, this was already tried on 06 February 2025 (see paras 27 and 28 of my second judgment). Mr Powell and Mr Basi were unable to make any other realistic suggestions (which is no criticism of them whatsoever).

On the evidence available, including the untested CAFCASS report from Ms Veitch, I am satisfied that there is no realistic prospect of the return order being implemented in the foreseeable future. This conclusion is a development which fundamentally changes the basis on which the return order was made.

The SGs concede that the first stage of Moylan LJ’s four stage process (as set out in Re B (A child) (Abduction: Article 13(b)) (above) at para 89) is met. However, as already mentioned, the SGs contend that the court should list a two-day hearing where matters can be argued more fully and evidence can be heard from, at the very least, Ms Veitch. It was submitted on their behalf that it would contravene their Art 6 EHCR rights to a fair hearing if they did not have the opportunity of cross-examining Ms Veitch. Whilst it is difficult at first blush to see how cross-examination of Ms Veitch would be likely to take matters further, I readily acknowledge that cross-examination can sometimes bring unexpected results and that, even if it did not, the SGs might perceive that the process had been fairer to them overall if they had at least had the opportunity to cross-examine. However, I must consider Ms Veitch’s untested report alongside all of the other evidence in the case and its uniquely vexed litigation history. Furthermore, when considering the SGs’ Art 6 rights, I must also consider the Art 6 and Art 8 rights of the boys and M, and the ‘Overriding Objective’.

At para 90 of Re B (A child) (Abduction: Article 13(b)) (above), Moylan LJ clarified that, “when the developments or changes relied upon are clear and already evidenced” there may be cases where it would be possible, if atypical, for all four stages of the process to be addressed at one hearing.

In my judgment, this is one of those unusual cases where the court can and should address all four stages at one hearing. My reasons are as follows:

I am mindful of the high bar on any application to set aside a return order. However, on the particular facts of this case with its uniquely vexed litigation history, and for the reasons I have given, I am satisfied that I should set aside the return order and bring these proceedings to an end today.

I hope that welfare arrangements for the boys can be resolved without further litigation. But if there is to be further litigation, then it should take place in England rather than Ireland.

I hope for the boys’ sake that, in due course, they will once again be able to enjoy positive relationships with the SGs. I endorse Ms Veitch’s “light touch” recommendations in respect of contact, and these will be recorded as a recital on the face of my order.