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In ST v QR [2022] EWHC 2133 (Fam) Mr Dexter Dias QC (as he then was) stated
In ST v QR [2022] EWHC 2133 (Fam) Mr Dexter Dias QC (as he then was) stated:
[22] Stepping back, the court is asked to reverse what it has previously decided. It is not because what was decided was legally or procedurally wrong. Equally, this is not judicial review-type scrutiny. The available power is triggered by one thing: the facts have changed. But not every factual change is sufficient. It must be fundamental. I will come to what I understand that to mean shortly, but it involves in itself a finding of fact. The reason is that it is preferrable as a matter of principle for the court which made the original findings of fact, and which determined the return order, to decide itself if the facts have changed sufficiently to require a reassessment of its own substantive decision. In Re W at para.66 Moylan LJ characterised the test as:
“A fundamental change of circumstances which undermines the basis on which the original order was made.”
[23] I judge that ten implications flow from this formulation:
'A fundamental change of circumstances' should not be elevated into something akin to a statutory test;
It simply asks the judge to assess whether the basis of her or his decision has so radically change[d] that the decision cannot stand. The term “fundamental” should be understood in that light;
It is more akin to foundational failure. In other words, the foundation for the decision has been swept away;
It is not necessary at this step, step (c), third out of the four-point rubric, for the applicant to prove on the balance of probabilities that an Article 13(b) exception or indeed any other exception exists;
That cannot be so, or step (d) would be rendered redundant. (See Re A at para.46.)
Thus, the question I ask myself is: does the totality of evidence, old and new, that is existing at the time of the original return order and thereafter, indicate that the foundations for that order either no longer exist or are insufficiently secure to continue to support it;
This is a finding of fact;
The applicant must prove it on a balance of probabilities. That is because of the basic principle that she or he who asserts must prove;
If proved, the court must go on to redetermine the substantive application;
The court may make the same or a different decision.
- Heading
- Mr. Nicholas Allen KC
- The application is brought by the children’s mother. It is resisted by the children’s father
- The background is fully set out at paragraphs 7-28 of the judgment of Mr. Jonathan Glasson KC sitting as a Deputy High Court Judge of 9 th December 2024 when he ordered the return of both children to
- It was common ground that this retention of the two children in England was a wrongful one
- Mr. Glasson KC identified the two issues he had to decide were
- Mr. Glasson KC considered the two issues he had identified in turn
- First, he considered M’s allegations of coercive and controlling behaviour as well as on occasion physical abuse. Taking the allegations at their highest he concluded they represented a “grave risk” t
- Second, Mr. Glasson KC considered M’s mental health. He emphasised that the question was not whether or not a return to Poland would expose M to psychological harm but whether or not the impact on M’s
- On the “critical question” of whether the impact on M’s mental health would be such as to give rise to a grave risk of harm to the children, he took into account factors including
- There was no appeal arising from this judgment Prior to, during, and further to the proceedings M had engaged in therapy with Ms. Estelle Maxwell, an integrative counsellor and registered psychotherapist. On 23 rd December 2024 Ms. Maxwell made an
- The cross-applications came before me for directions on 15 th January 2025. In relation to M’s application I considered the four stages as set out in Re B (A Child: Abduction: Article 13(b)) [2021] 1
- In Re W (Abduction: Setting Aside Return Order) [2019] 1 FLR 400 Moylan LJ stated at [37] that
- In KS and Another v K (through his Solicitor Guardian Laura Coyle) [2025] EWHC 210 (Fam) Mr. David Rees KC (sitting as a Deputy High Court Judge) expressed a similar view at [22] namely that “clearly
- Conscious of this guidance I directed that counsel were to approach Mr. Glasson KC’s clerk to enquire about his availability to hear future hearings and in the event it was not possible to list the sa
- I gave an extempore judgment in which I refused the application. In so doing I referred to Re C (A Child) (Child Abduction: Parent's Refusal to Return with Child) [2021] EWCA Civ 123 6 per Sir Andrew
- Ms. Renton relied upon NP v DP (Hague Convention; Abducting Parent Refusing to Return) [2021] EWHC 3626 (Fam) in which Holman J stated at [21] that “notwithstanding the observations of the Court of Ap
- In Re R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296 Peter Jackson LJ having at [39] cited the above three paragraphs from Re C (A Child) (Child Abduction: Parent's Refusal to
- I determined that the high threshold for oral evidence was not crossed. I considered it unnecessary for several reasons namely (i) I preferred appellate guidance from the Court of Appeal over (inevita
- I therefore concluded (to adopt what was said in Re B (A Child: Abduction: Article 13(b) ) per Moylan LJ at [64] in the context of the admission of oral evidence on the issue of consent) that it was n
- The law relating to an application to set aside an order under the Hague Convention 1980 was set out in Re B (A Child: Abduction: Article 13(b)) per Moylan LJ which in turn cited from Re W (Abduction
- Moylan LJ thereafter expressed his conclusions in Re W (Abduction: Setting Aside Return Order) as follows
- This “high” bar was then adopted by the Family Procedure Rule Committee as part of the changes to FPR 2010 by r12.52A and PD12F para 4.1A the latter of which states inter alia
- In Re B (A Child: Abduction: Article 13(b)) Moylan LJ then turned to the approach which the court should take when a set aside application has been made
- In Re A (A Child) (1980 Hague Convention: Set Aside) [2021] 2 FLR 1249 Hayden J (sitting in the Court of Appeal) stated at [46] that “the logic and structure of [the Re B test] is manifestly helpful”
- Moylan LJ thereafter stated
- In ST v QR [2022] EWHC 2133 (Fam) Mr Dexter Dias QC (as he then was) stated
- Ms. Renton submitted that both the need to assess whether the basis of the decision “has so radically change[d] that the decision cannot stand” and a “foundational failure” were judicial glosses that
- Ms. Renton submitted that the high threshold was considered “pragmatically” by Mr Dias QC in ST v QR at [25]
- It is also clear from Re B (A Child: Abduction: Article 13(b)) per Moylan LJ at [94] that the court must not conflate stages (c) and (d). I must first consider whether there had been a sufficient chan
- I shall therefore consider the two bases in turn but bear in mind it is said they are linked. In doing so I bear in mind the observation made in KS and Another v K (through his Solicitor Guardian Laur
- It is conceded (rightly) on M’s behalf that Dr. Pickering’s addendum report of 18 th March 2025 (and which was based on an assessment of M on 10 th February 2025) effectively reaches the same conclusi
- However, it was submitted by Ms. Renton and Ms. Halliday on M’s behalf at paragraph 9 of their Position Statement that it was “far too simplistic” to assert that this meant there has been no “change o
- Ms. Renton therefore submitted that M’s mental health at the time of her being assessed by Dr. Pickering in February 2025 was not the complete picture. The complete picture – and what was said to be t
- Ms. Renton submitted that by the date that M was reviewed by Dr. Pickering the certainty of a return to Poland had faded. The set aside application had been made and a stay of the original order had b
- My difficulty with this submission is, as I said to Ms. Renton during her submissions, that there is no evidence from Dr. Pickering that the improvement from late December 2024 to a position unchanged
- Although, as Ms. Renton observed, Dr. Pickering had said that the deterioration was most likely to occur on M’s return to Poland and she had to rely on F and was unable to have adequate distance from
- In Re R (Child Abduction: Parent’s Refusal to Accompany) Peter Jackson LJ considered the approach to take to circumstances where a taking parent indicated that they did not intend to return with the c
- As Ms. Renton submitted, both of M’s grounds are linked (or, as she put it the deterioration in M’s mental health and decision not to return are “knotted together” and elsewhere that her decision not
- Professor George also accepted that both grounds were linked in that he submitted that if I “discounted” the medical evidence then this raised “serious questions about M’s non-return” . He also submit
- It is clear from Re W (Abduction: Setting Aside Return Order) per Moylan LJ at [66] that the bar is set high as “otherwise … there would clearly be a risk of a party seeking to take advantage of any c
- A further reason that the bar is set high is due to the fact that otherwise a refusal of a summary return based on an assertion by an abducting parent that they would not accompany a young child on re
- Peter Jackson LJ at [34] then cited from S v B (Abduction: Human Rights) [2005] 2 FLR 878 per Sir Mark Potter P
- Further at [35] Peter Jackson LJ stated: In Re E at [34], the Supreme Court endorsed the proposition that, if a grave risk exists, its source is irrelevant, and in Re S (A Child) (Abduction: Rights of
- Further per Peter Jackson LJ at [36] where a parent asserts that they will not accompany the child to return, the court “will scrutinise the assertion closely, because it is an unusual one for a main
- As Peter Jackson LJ further observed at [38] a summary assessment of the likelihood as to whether a parent will return “will not always be easy” . It is not easy in this case
- Conclusions