Y (Children)

Y (Children)

The judge was entitled to refuse the mother's application to set aside the return order and to refuse to commission further expert evidence, as the evidence of a change in the mother's mental health was insufficient and did not justify reopening the proceedings. The judge applied the correct test and was not required to further investigate the intolerability of the children returning to Canada without their mother in the absence of sufficient evidence. The appeal was dismissed and the return order stands.

Parties
Appellant: Mother; Respondent: Father
Jurisdiction
England and Wales
Judgment Date
25 May 2018
Procedural Posture
Child Abduction Under Hague Convention / Appeal From High Court Family Division Decision Refusing to Set Aside Return Order
Outcome
Appeal dismissed
Legal Topics
Hague Convention, Return of Children, Article 13(b) Exception, Jurisdiction to Set Aside Orders, Expert Evidence
Family Law International Child Abduction Hague Convention Return of Children Article 13(b) Exception Jurisdiction to Set Aside Orders Expert Evidence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Mother

Appellant

Father

Respondent

Procedural Posture

Child Abduction Under Hague Convention / Appeal From High Court Family Division Decision Refusing to Set Aside Return Order

Legal Issues

  1. 1 Whether the High Court had jurisdiction to set aside a final return order under the Hague Convention
  2. 2 Whether the judge erred in refusing to adjourn for further expert evidence on the mother's mental health
  3. 3 Whether the judge applied the correct test in considering the set aside application

Ratio Decidendi

The judge was entitled to refuse the mother's application to set aside the return order and to refuse to commission further expert evidence, as the evidence of a change in the mother's mental health was insufficient and did not justify reopening the proceedings. The judge applied the correct test and was not required to further investigate the intolerability of the children returning to Canada without their mother in the absence of sufficient evidence. The appeal was dismissed and the return order stands.

Court Disposition

Appeal dismissed

Orders

  • The judge’s order for the return of the children to Canada stands.
  • A further window is provided during which the mother may choose to return to Canada with the children before the father is entitled to make arrangements himself.