AB and CD (Children) (No 2) (1980 Hague Child Abduction Convention: Joinder; Set Aside), Re [2025] EWHC 1463 (Fam)

IMPORTANT NOTICE

This judgment was delivered in private. Any published version of the judgment must strictly preserve the anonymity of the children and members of their family. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

[2025] EWHC 1463 (Fam)

FD24P00418; FD25P0007

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Between

The Special GuardiansApplicant

The MotherRespondent

Michael Gration KC and Mani Singh Basi (counsel) instructed by Hopkin Murray Beskine for Applicant Special Guardians

Miriam Best (counsel) instructed by Ben Hoare Bell LLP

for Respondent Mother

Christopher Hames KC instructed by Goodman Ray Solicitors

for child AB

THE CHILD ABDUCTION AND CUSTODY ACT 1985

(INCORPORATING THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION)

THE CHILDREN: AB (aged 14) and CD (aged 9)

Re AB and CD (Children) (No 2)

(1980 Hague Child Abduction Convention: Joinder; Set Aside)

JUDGMENT

Nicholas Stonor KC sitting as a Deputy High Court Judge

Date 20 February 2025

[1]On Friday 06 December 2024, I made a return order under the 1980 Hague Child Abduction Convention in respect of two brothers, AB (aged 14) and CD (aged 9). The order was made on the application of the boys Special Guardians (“SGs”) with whom the boys had been living in Ireland since 2020. The boys had been wrongfully retained in the North-East of England by their mother (M) in August 2024.

[2]M had opposed the application by reference to Article 13(b) (“Harm / Intolerable Situation”) and Article 13 (“Child’s Objections”). In my judgment (Re AB and CD (Children) (1980 Hague Child Abduction Convention: Harm/Intolerable Situation; Child’s Objections)

[2024] EWHC 3520

), I set out the background and my reasons for rejecting M’s case and making a return order. This judgment should be read with my earlier judgment.

[3]The applications before me today are:(1) AB’s application to be joined as a party and to be separately represented by a solicitor-guardian.

(2) AB’s application to set aside the return order.

(3) M’s application for CD to be joined as a party with a Guardian appointed on his behalf.

[4]The applications are opposed by SGs who continue to pursue the implementation and, if necessary, enforcement of the return order. The SGs confirmed that they were not pursuing enforcement today.

[5]The case papers comprise those which were before me in December 2024 supplemented by documentation relating to developments since then, which include two applications by M for permission to appeal to the Court of Appeal: one against the return order which I made on 06 December 2024; the other against orders made by Garrido J on 29 January 2025, which included a refusal of M’s application to set aside the return order.

[6]AB has been represented by Mr Hames KC on the instructions of Janet Broadley, a highly experienced solicitor with particular expertise in child abduction matters. In support of AB’s applications, I have a detailed statement from Ms Broadley dated 06 February 2025. M has been represented by Ms Best, counsel. The SGs have been represented by Mr Gration KC and Mr Basi. Helpful position statements have been filed on behalf of AB, M and the SGs.

[7]I heard oral submissions over the course of the afternoon on 13 February 2025. I then took time to reflect and prepare this judgment. I am grateful to all counsel and their respective instructing solicitors for their assistance. Events Since 06 December 2024

[8]The return order was to be implemented by 30 December 2024, with support as may be necessary from social workers at Y Local Authority in liaison with their TUSLA counterparts in Ireland.

[9]On Thursday 12 December 2024, I received a request by email from M’s counsel to reconsider my decision on the basis of the boys “escalating and intensifying objections”. This request was accompanied by a note of a discussion between social workers from Y Local Authority and both boys on 06 December 2024, and a note of a discussion between school staff and AB on 11 December 2024. I refused the request.

[10]On the same day, no doubt on instructions from M, M’s counsel emailed Ms Broadley informing her that AB wished to seek legal advice. By the time Ms Broadley was able to respond, M’s counsel informed her that she thought AB had sought advice elsewhere.

[11]On 23 December 2024, M applied to the Court of Appeal for permission to appeal against the return order. The grounds and skeleton in support were drafted by leading and junior counsel. The Court of Appeal was apprised of the request to reconsider, and my response, on 12 December 2024.

[12]On 24 December 2024, M’s application was refused by Peter Jackson LJ. I consider it appropriate to cite extracts from Peter Jackson LJ’s reasons because(1) they were presumably read by M (or at least communicated to her) and

(2) they have resonance when I come to consider the issues before me today. They included the following: “3. Some Convention applications begin with a clean procedural slate, but this one did not. The judge was not only entitled but obliged to give weight to the court’s findings in July 2023, particularly as they concerned broadly similar issues: para 51. It is not arguable that reliance on those findings was excessive.

[4]The judge’s assessment of the origin of the children’s views was a careful one. It is idle to suppose that the drumbeat of their mother’s opposition to the court’s decision, renewed immediately after the July 2023 order (paras 24-26) had no effect upon them.

[5]The judge took full account of the children’s opposition to returning but he was not obliged to prioritise it. The applicant refers to the difficulties in implementing a return order as if she had no parental responsibility, nor any influence, nor any duty to obey the court’s order. At para 69 the judge urged the applicant to behave as a loving and responsible parent in working constructively to implement the order.”

[13]On 30 December 2024, the SGs travelled to the North-East to collect the boys in accordance with a plan which had been formulated by social workers from Y Local Authority. The boys refused to leave M’s home. The SGs engaged a process server (who had been tasked with collecting the boys’ passports) and the Police to assist. There are significant factual disputes relating to the conduct of all involved. I am not in a position to resolve those disputes today even if it were necessary for me to do so. On any view, the episode was a distressing one for the boys.

[14]On 07 January 2025, the SGs applied for a collection order in order to enforce the return order. On 16 January 2025, Sir Jonathan Cohen sitting as a High Court Judge directed that the matter should be listed for an “in person” hearing on 29 January 2025, and that the boys should attend court with M.

[15]On 23 January 2025, again no doubt on instructions from M, M’s counsel informed Ms Broadley that AB was seeking legal advice and representation and that an enforcement hearing had been listed for 29 January 2025. Ms Broadley subsequently spoke to AB by phone and met with him at court on 29 January 2025. Ms Broadley was satisfied that AB’s level of understanding was such that he was competent to instruct her directly. Ms Broadley’s assessment had not been the subject of challenge.

[16]On 28 January 2025, M applied to set aside the return order. Within the application, it was asserted that there had been a fundamental change in circumstances by reference to three matters:(1) The events of 30 December 2024 as described by the social workers from Y Local Authority and the Police.

(2) An apparent refusal to assist on the part of TUSLA linked to the perceived status of the special guardianship order made in favour of the SGs.

(3) The children “continue to express strong reluctance to return to Ireland” to all professionals, M and the SGs.

[17]On the same day, M applied for permission to attend remotely at the hearing on 29 January 2025, notwithstanding the order which had been made on 16 January 2025 for her to attend in person with the boys. Within the application, it was noted that “AB has now instructed a solicitor and M also seeks for Children’s Guardian for the youngest child”.

[18]In the event, M did attend the hearing on 29 January 2025 in person and brought the boys to court as directed. The hearing was before Garrido J. The SGs, M and AB were represented by counsel. An application was made for disclosure of the case papers to Ms Broadley and an adjournment to allow her to consider them and give further advice to AB. That application was refused, as was M’s application to set aside the return order. M was ordered to return the boys forthwith. The application for a collection order was adjourned. A short stay was imposed to allow time for M and/or AB to apply for permission to appeal. Limited disclosure was permitted to Ms Broadley for the purposes of a potential appeal on AB’s behalf.

[19]During the course of the court day, at the direction of Garrido J, the boys had the opportunity of speaking to the SGs in the presence of the Tipstaff and in the absence of M. I have read Ms Broadley’s account from outside the room. She reports hearing raised voices and the SGs accusing the boys of lying. I do not have an account from the SGs. Whatever was said during this short meeting (and again I am not in a position to determine that today even if it were necessary for me to do so), this was plainly another distressing experience for the boys.

[20]On 30 January 2025, M applied to the Court of Appeal for permission to appeal against Garrido J’s substantive orders. The Court of Appeal was provided with the accounts from the Police and social workers from Y Local Authority in respect of the failed attempt to implement the order on 30 December 2024.

[21]On 31 January 2025, M’s application was refused by Peter Jackson LJ. Again, and for reasons already outlined, I consider it appropriate to cite extracts from the reasons given by Peter Jackson LJ. They included: “1. The submission that AB’s views were not given sufficient consideration at all is unarguable. His views were given very close attention by Mr Stonor KC, who met him and CD, and Garrido J also had full information about them. He was also right to take account of the lateness of AB’s application. There had been a live issue about the children’s return since 8 August 2024 and proceedings had been on foot since 6 September 2024. It is not surprising that the judge noted that the application for disclosure was not made until 28 January 2025, almost a month after the return order was to have taken effect. He might have refused to allow any disclosure to C’s solicitor and his order for disclosure of key documents was certainly not wrong. The mother’s application for a Guardian to be appointed for AB had the hallmarks of a delaying tactic and did not require to be prioritised. Generally, the applicant’s submissions take no account of the intended timescale for summary proceedings in this jurisdiction, namely 6 weeks.

[2]The judge directed himself in accordance with PD12F and the leading case of Re B

[2020] EWCA Civ 1057

. His conclusion that neither the events of 30 December, nor the letter from the school, justified the reopening of the return order was plainly open to him. The High Court had made a considered decision, from which an attempt to appeal had not succeeded. That order binds all family members, including the children. The judge was entitled to find that their continued opposition to it did not provide a principled basis for reopening the order. The fact that a Collection Order was not made on that occasion is immaterial.

[3]The risk of harm to the children in returning to Ireland was fully considered by Mr Stonor KC, and Garrido J was entitled to consider that it had not changed.

[4]As to delay, see 1 above. In the context of a mandatory order not being complied with, any delay is significant.”

[22]Pursuant to the order made by Garrido J on 29 January 2025, the boys were to be returned by 1600 on 31 January 2025. A social worker from Y Local Authority attended M’s house later that afternoon and spoke to the boys in M’s presence. The boys refused to travel to London to meet with the SGs.

[23]The SGs’ adjourned application for a collection order came before Mr John McKendrick KC, sitting as a Deputy High Court Judge, on 03 February 2025. An order was made for the boys to be handed over to the SGs at 1130 on 04 February 2025, preferably with the assistance of social workers from Y Local Authority, at a local McDonald’s restaurant. That did not happen. There are some factual disputes about what happened which, again, I am not in a position to resolve today even if it were necessary for me to do so. The social worker’s account which includes CD attempting to harm himself by hitting his head off a metal handrail and kicking bricks supporting the hand rail; CD saying he would rather be hurt than leave with the SGs; AB saying that he would leave with M and would not stay with the SGs; CD commenting that nobody likes the SGs; both boys discussed plans to run away if taken to Ireland; AB asking the SGs to “stop this now as his solicitor has told him they can”; CD commenting that SG2 is not a mother and does not know what it is like to be one, which M (and her sister who was present) confirmed had been overheard by CD when M had been on the telephone to the SGs the previous night. Again, this was plainly another distressing episode for the boys.

[24]I understand that later the same day the boys were brought by M to the Y social work offices. I have limited information in relation to this episode but handover was not effected.

[25]The matter then came back before Mr John McKendrick KC on the afternoon of 04 February 2025. The order made that day records that the Tipstaff “did not consider it possible to safely execute a collection order at this time”. The SGs’ application for a collection order was adjourned to a hearing before Keehan J on 06 February 2025. M was once again directed to bring the boys to court and an officer of CAFCASS (ideally Ms Veitch who had previously reported) was requested to attend.

[26]In her statement dated 06 February 2025, Ms Broadley sets out in detail her discussions with AB. She comments at (para 23):

“Having considered AB’s instructions on these issues I am satisfied that he is legally competent and able to instruct his own solicitor. He demonstrates incredible determination in his refusal to return and sets out his reasons with clarity and feeling. In my view, his level of maturity and level of understanding and his ability to reflect upon in a mature manner, his past and his short, medium and long term interests, demonstrates to me a young person who is capable and competent to instruct me.”

[27]On 06 February 2025, M and the SGs were represented by junior counsel and AB was represented by Mr Hames. M brought the boys to court. Ms Huntingdon of CAFCASS kindly attended in place of Ms Veitch. At the request of Keehan J, Ms Huntingdon spoke to the boys. Her note includes the following:

“AB was repeatedly very hard in saying he is not going back – every aspect I looked to explore with him and every question I asked, he said “I don’t care we’re not going back”

. I talked about following court orders and the law, that didn’t matter. I think they had a sense that because court has decided they should return and that hasn’t happened yet, that bolstered their view that they don’t need to go back, they can continue to resist, it was more CD who held this view. They expressed worry about them being hurt, locked outside, being pushed, not being provided with meals. He spoke that if he were made to return, he would trash the place, he was worried AB would hit his grandfather. He spoke about being in McDonalds and he was trying to hurt himself, he was kicking a wall. He did that because he thought if he hurt himself, he wouldn’t be forced to return. I did say what if the Judge decided for them to go back today, he said he will kill them. I looked at him and he said we won’t actually kill them, but I will hurt them. Then he said he won’t hurt them but we will ruin their stuff and do things to hurt them and talked about running away. . . . AB was really emotional when I was pressing him and exploring options – He kept saying I am not going back then getting frustrated that I was not just accepting that. He became very tearful; his tone was getting louder. He was becoming very emotionally agitated and distressed and was tearful and playing with phone to soothe himself. He was adamant that he was not going to go back no matter what, he said he would run away. I explored that a little bit with him, he doesn’t have a clear plan, he has a phone, some money on it. He would remove himself from the vicinity, would either get a bus or a train and try to get to [a nearby city] or call someone to collect him. He would run away from the very [presumably this should read ‘ferry’] terminal. He was very clear. I don’t think there is much more I can say in terms of what they conveyed. AB did not care if there were any social workers or school input, he would not go, he was getting quite distressed.”

[28]In light of that discussion, the SGs indicated that they were not pursuing a collection order that day and their application was adjourned. By consent, the full case papers were disclosed to Ms Broadley. The various live applications (set out above) were listed before me on 13 February 2025 for half a day.

[29]On 11 February 2025, as reflected in a note from school, AB told school staff that he would not be going back to Ireland and he made a number of complaints about the SGs along the lines of those which he has previously expressed. Legal Framework 3.1 Joinder

[30]The essential test, as set out in FPR 2010, rule 16.2, is whether it is in AB’s best interests for him to be joined as a party.

[31]FPR 2010, PD16A, para 7.2 provides that:

“The decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case.”

It goes on to provide a non-exhaustive list of circumstances which “may justify the making of such an order”. On behalf of AB, it is contended that three of those circumstances are applicable here: “(b) where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties; . . . (d) where the views and wishes of the child cannot be adequately met by a report to the court; (e) where an older child is opposing a proposed course of action;”.

[32]FPR 2010, PD16A, para 7.3 provides as follows:

“It must be recognised that separate representation of the child may result in a delay in the resolution of the proceedings. When deciding whether to direct that a child be made a party, the court will take into account the risk of delay or other facts adverse to the welfare of the child. The court’s primary consideration will be the best interests of the child.”

[33]In C v M (A Child) (Abduction: Representation of Child Party)

[2023] EWCA Civ 1449

, Moylan LJ said (emphasis added): “78. First, as set out in D (A Child) Re D (A Child) (Abduction: Child’s Objection: Representation of Child Party)

[2023] EWCA Civ 1047

at [57]-[58], it will only rarely be necessary for a child to be joined as a party to proceedings under the 1980 Convention. The child’s voice will typically be sufficiently heard and their views sufficiently conveyed through a report by a Cafcass Officer.

[79]Secondly, the issue of whether and how a child’s voice is to be heard, including whether they are to be joined as a party, is dealt with at paragraphs 2.11(i) and 3.6 of the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings, issued by Sir Andrew McFarlane P on 1 March 2023.”

[34]The aforementioned Practice Guidance provides at para 3.6 (under the heading ‘Participation of the Child’) (emphasis added): “. . . The methods by which a child may be heard during the proceedings comprise a report from an Officer of the Cafcass High Court Team or through party status with legal representation. In most cases where it is appropriate for the child to be given an opportunity to be heard in proceedings, an interview of the child by an officer of the Cafcass High Court Team will be sufficient to ensure that the child's wishes and feelings are placed before the court . . .. In only a very few cases will party status be necessary. . . .” 3.2 Set Aside

[33]Pursuant to FPR 2010, r 12.52A:

“. . . (2) A party may apply under this rule to set aside a return order where no error of the court is alleged. . . . (5) Where the court decides to set aside a return order, it shall give directions for a rehearing or make such other orders as may be appropriate to dispose of the application. (6) This rule is without prejudice to any power the High Court has to vary, revoke, discharge or set aside other orders, declarations or judgments which are not specified in this rule and where no error of the court is alleged.”

[35]FPR 2010, Practice Direction 12F, para 4.1A, provides as follows (emphasis added):

“Challenging a return order or non-return order 4.1A If you are a party to a return case and you believe that the court has made an error, it is possible to apply for permission to appeal (see Part 30 of the Rules and Practice Direction 30A). In rare circumstances, the court might also ‘set aside’ its own order where it has not made an error but where new information comes to light which fundamentally changes the basis on which the order was made. The threshold for the court to set aside its decision is high, and evidence will be required – not just assertions or allegations. If the return order or non-return order was made under the 1980 Hague Convention, the court might set aside its decision where there has been fraud, material non-disclosure or mistake (which all essentially mean that there was information that the court needed to know in order to make its decision, but was not told), or where there has been a fundamental change in circumstances which undermines the basis on which the order was made. If you have evidence of such circumstances and wish to apply to the court to set aside its decision, you should use the procedure in Part 18 of the Rules. . . ..”

[36]In Re B (A child) (Abduction: Article 13(b))

[2020] EWCA Civ 1057

, Moylan LJ said (emphasis added):

“91. I would further emphasise that, because of the high threshold, the number of cases which merit any application to set aside are likely to be few in number. The court will clearly be astute to prevent what, in essence, are attempts to re-argue a case which has already been determined or attempts to frustrate the court’s previous determination by taking steps designed to support or create an alleged change of circumstances.”

[37]The reason for this “high threshold” was further explained by the Court of Appeal (Hayden J giving the lead judgment) in its decision in A (A Child) (1980 Hague Convention: Set Aside)

[2021] EWCA Civ 194

at para 48.

[38]I have also found it helpful to consider the decision of Sir Andrew McFarlane PFD in A and B (Separate Representation)

[2024] EWHC 2834

. In that case, an application was being made on behalf of a child to preserve party status for the purposes of the child pursuing a set aside application. In the circumstances of that case, the President considered that it was appropriate when determining the application for separate representation to have regard to (amongst other matters) the prospects of success of the proposed set aside application (see paras 27). The President also emphasised the strict nature of the test for set aside applications: there must be a fundamental change which sufficiently undermines the basis of the court’s decision and order so as to require the application to be reheard (see paras 28 to 30).

[39]In Re B (A child) (Abduction: Article 13(b)) (above), between paras 86 and 90, Moylan LJ provided guidance as to the approach which the court should take when a set aside application has been made. After drawing an analogy with the approach taken in cases where an application has been made to re-open findings of fact in children cases, Moylan LJ said: “89. I suggest the process, referred to above and adapted as follows, should be applied when the court is dealing with an application to set aside 1980 Convention orders:(a) the court will first decide whether to permit any reconsideration;

(b) if it does, it will decide the extent of any further evidence;

(d) if the order is set aside, the court will redetermine the substantive application.

when the court is dealing with an application to set aside 1980 Convention orders:

[90]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.”

[40]Mr Hames drew my attention to the decision of Theis J in C v. M and X

[2023] EWHC 1482

where a child was joined as a party (with a solicitor-guardian) in order to pursue a set aside application and a staged approach was adopted. Submissions

[41]I have considered all of the submissions made in writing and orally.

[42]In essence, on behalf of AB, Mr Hames submitted:(1) “It is hard to envisage any reasoned objection why he should not be joined so his voice can be heard” in circumstances where:

a. AB’s solicitor considers that he is competent to instruct her directly and has displayed impressive maturity in his discussions with her.

b. AB is “already heavily invested in these proceedings” having attended court on two occasions (since the return order), meeting the judge (AB’s remote meeting with me on the first day of the December hearing), meeting his solicitor and leading counsel.

c. To refuse to join AB would mean that insufficient regard was being paid to his autonomy. This would have a deleterious effect on his self-esteem and his trust in adults.

d. AB’s case may involve criticism of his mother and so cannot be advanced through her legal representatives.

(2) The court should (at the very least) take steps (a) and (b) in the process recommended by Moylan J in Re B (A child) (Abduction: Article 13(b)) (above), and so the court should consider the set aside application on the basis of a fundamental change of circumstances which undermines the return order, and go on to give directions to include the filing of further evidence from Ms Broadley, the SGs, M and possibly from Ms Veitch, with provision then made for one (and possibly two) further hearings. Consideration of a relevant fundamental change of circumstances is justified on the following basis: a. There have been six unsuccessful attempts to implement the return order (as set out above: at M’s home on 30 December 2024; at court on 29 January 2025; at M’s home on 31 January 2025; at McDonald’s on 04 February 2025; at the social work offices on 04 February 2025; at court on 06 February 2025), involving a range of professionals and strategies. b. AB (and CD) are becoming increasingly distressed; they are both threatening harmful behaviours; CD engaged in harmful behaviours on 04 February 2025; their mental health and emotional wellbeing are being jeopardised. c. There are doubts about the status of the special guardianship order in Ireland and whether the Irish court would decline jurisdiction, which were not known at the time of the making of the return order. d. There is evidence that M has behaved appropriately since the making of the return orders but the SGs have not always done so. Whilst this may be disputed by the SGs, it is supported by the social workers from Y Local Authority.

e. In all the circumstances - “Given what is now known of the depth, strength and quality of the children’s objections, as well as the very real harm and distress the repeated attempts of enforcement have caused them, the high hurdle has been crossed.”

(3) Even if the court refuses to allow AB to be joined for the purposes of pursuing an application to set aside, it should allow him to be joined (with Ms Broadley as his solicitor-guardian) for the purposes of the enforcement of the return order.

(4) The court should also consider AB’s request for a further meeting with the judge.

[43]On behalf of M, Ms Best echoed the submissions made by Mr Hames with particular emphasis on CD’s position. In terms of case management of the proposed application to set aside the return order (“stage (b)”), it was submitted that written evidence should also be filed from the boys’ schools (in England), social workers from Y authority, the process server involved on 30 December 2024 and TUSLA.

[44]On behalf of the SGs, Mr Gration and Mr Basi submitted:(1) AB’s application to be joined as a party should be refused:

a. The issue of the joinder of both boys (and appointment of a guardian) was properly considered at an earlier stage of the proceedings and there is no reason to revisit it: i. In her report dated 25 October 2024, Ms Veitch expressly considered the issue of joinder and did not consider that it was required for the boys’ views to be heard. ii. At a case management hearing before Mr Rees KC sitting as a Deputy High Court Judge on 30 October 2024, when M’s position on the issue was neutral (as recorded on the order made that date), the court decided not to join the boys. iii. At the hearing before me in December 2024, no request was made for the boys to be joined.

b. AB’s voice has been heard loud and clear throughout the proceedings, as reflected in my judgment of 06 December 2024, the judgments of Garrido J and Mr McKendrick KC, and in the observations of Peter Jackson LJ when refusing M’s two applications for permission to appeal.

c. There are strong welfare grounds for not joining AB: i. AB’s vulnerabilities are well known to the court and have been the subject of judicial findings, most particularly in the judgment of CJ in July 2023. ii. AB’s applications appear to have been instigated by M following her own unsuccessful attempts to avoid the return order, and “AB is now thrust into this complicated dynamic, to the point of seeking to advocate a case for himself. He should be protected from this, bearing in mind his history and obvious vulnerability as a child who has spent long periods of time in care.” iii. Whilst there is no criticism whatsoever of the way in which AB’s legal team have discharged their responsibilities, their involvement has risked creating a flawed impression for AB that his views will carry more weight “whether through repetition or because of who it is that is stating them to the court”.

(2) There is no proper basis for the court to consider the set aside application because there has been “no change of circumstances, let alone a fundamental one, which would require reconsideration of the application”: a. When the return order was made, the court was fully aware of the strength of the opposition from the boys, and AB in particular. b. When the return order was made, the court was fully aware that its implementation was likely to be difficult. c. Developments since the making of the return order, including the six failed handover attempts, while distressing for all involved and most particularly the boys, are sadly not surprising given the history of the case, including previous judicial findings and observations as to the boys’ vulnerabilities, M’s lack of insight into the boys’ emotional needs, and the boys’ expressed views not being authentically their own.

d. There are factual disputes in respect of the various handover attempts. But even if M has behaved appropriately, the court should not lose sight of the fact that she has herself applied to set aside the return order, has applied for permission to appeal on two occasions, and (through her counsel) signposted AB to his own solicitor.

e. Issues relating to the status of the special guardianship order are the result of misunderstanding on the part of social work professionals; there is no jurisdictional confusion.

(3) This is “in reality, a case that is uniquely ill suited to be determined under the 1980 Hague Convention where the children’s needs are complex and require consideration on the basis of a full and holistic welfare analysis.” That analysis should be undertaken in Ireland.

(4) If the court is minded to join AB for the purposes of enforcement, then he (and CD) should have a social work guardian, Ms Veitch ideally, and not a solicitor-guardian.

[45]Mr Fudge, solicitor for Y Local Authority, attended the hearing as an observer. As directed by Keehan J, he had provided a position statement which confirmed that if the boys were to remain in England then Y Local Authority would remain involved on a Child In Need basis. He reported that social workers from Y Local Authority are concerned about the boys’ emotional welfare, and that they have reported positively in relation to M’s recent conduct but have made some adverse comments about the SGs’ conduct. In oral submissions, Mr Fudge indicated that his position was somewhat hampered by lack of access to the case papers. He agreed that the perceived jurisdictional issue as discussed between social workers at Y Local Authority and TUSLA may well be the result of a misunderstanding.

[46]In order to determine the applications now before the court I must consider the here and now but I must also reconsider my judgment dated 06 December 2024. In doing so, I must maintain a child-focused approach. There is no place for any form of judicial stubbornness: just because AB was not previously joined as a party, it does not follow that he should not be joined now; just because I made a return order on 06 December 2024 it does not follow that I should not now consider setting aside that order. Whilst alive to the underlying policy considerations which favour continuing efforts to implement the return order, I must also keep in mind the well-rehearsed reminder that an instrument designed to secure the protection of children from the harmful effects of international child abduction should not itself be turned into an instrument of harm.

[47]When I made the return order, I had a considerable amount of information relating to the boys’ views:(1) They met Ms Veitch separately at the RCJ on 14 October 2024. Ms Veitch set out those discussions in detail in her report dated 25 October 2024. Ms Veitch expanded on those discussions during her oral evidence on 06 December 2024. I recorded Ms Veitch’s written and oral evidence at length (paras 37-44 of judgment).

(2) The boys’ views had also been communicated to social workers from Y Local Authority (para 34 of judgment).

(3) I met with each boy remotely on 06 December 2024 (para 12 of judgment).

[48]When considering the “Child Objections” exception, I noted that “Since August 2024, AB and CD have both consistently expressed their clear opposition to a return to Ireland” and I was satisfied that the “gateway” test had been met (para 58 of judgment).

[49]After referring to the guidance in C v. M (A Child) (Abduction: Representation of a Child Party)

[2023] EWCA Civ 1449

, I continued:

[60]When considering the nature and strength of the boys’ objections, both boys - AB more so than CD - have expressed their opposition in robust terms. The views of a 14 year old and, inevitably to a somewhat lesser extent, a 9 year old, will always demand respect. It cannot be ignored, however, that these boys are emotionally vulnerable as a result of their life experiences to date. Nor can it be ignored that their robust opposition is entirely at odds with the way in which they were expressing their views during the run up to the hearing before CJ in July 2023. Whilst the circumstances surrounding AB’s letter to M in December 2023 remain vague, the sentiments expressed in that letter chime very much with the observations made by CJ in her judgment. There has been a “sea-change” in the boys’ expressed views.

[61]To what extent are the boys’ views authentically their own or the product of influence from their mother or other members of the maternal family? Ms Veitch considered, on balance, that if there was influence then it was likely to be strengthening a pre-existing negative view. The boys, particularly AB, have plainly been unhappy at times about their “lived experience” in the care of the SGs. There is some third-party corroboration for that unhappiness, particularly in the school referral from February 2024. There are aspects of the care offered by the SGs which troubled CJ and, as I have already indicated, there are aspects of their recent conduct which trouble me.

[62]But the themes of the boys’ complaints broadly chime with those which were before the court in July 2023 at a time when the boys were clearly stating that they were happy living with the SGs. How have those complaints developed into a robustly expressed opposition to a return to Ireland? CJ found that M loved her boys but lacked insight into their emotional needs, holding as she did to her fixed view that they should return to her care notwithstanding their clearly expressed wishes to the contrary. M’s unhappiness about the decision made by CJ in July 2023 is apparent. Since August 2024, the boys have been living in a home environment where it seems that no-one has a good word to say about the SGs. Influence can of course be exerted directly or indirectly. On the evidence currently available, I am not at all confident that the boys’ views are authentically their own.

[63]To what extent are the boys’ objections coincidental with or at odds with other relevant welfare considerations? It is not a function of these proceedings for the court to undertake a holistic welfare evaluation. It is a feature of this case, however, that as recently as July 2023, the Family Court did just that and concluded that welfare considerations pointed unswervingly towards the boys remaining in Ireland. Of course, I must look at the here and now. If the boys’ objections were followed, then they would know that their wishes had been respected and they would continue to live with their mother and half-sister and attend the school where they are settling reasonably well. To that extent, there may be some short-term benefit for them. But it would mean them living in a home which, on the clear findings of CJ in July 2023, was not one which would meet their long-term emotional needs.

[64]If the boys’ objections were not followed, then at least in the short term they may be harmed by the sense that their views had been overruled and their autonomy disrespected. There would be yet more disruption in their lives. However, they would be returning to the home they had been living in for four years prior to their wrongful retention, a home which, as found by the Family Court in July 2023, is the one which offers the much better prospect of meeting their emotional needs.

[65]I have regard to the well-established policy considerations which include the fact that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.

[66]For all these reasons, I am not satisfied that the “Child Objections” defence has been made out.

[50]One of the arguments advanced by M in respect of the “harm/intolerable situation” exception, as I noted (para 50(3) of judgment), was put as follows:

“A “forced return”, against the boys’ expressed wishes, would itself be emotionally harmful, particularly in respect of AB who, as a 14 year old, is likely to feel disempowered and that his autonomy has not been properly respected.”

[51]I considered that argument but concluded (para 55 of judgment) that:

“In relation to point (3), whilst I do not doubt that the implementation of a return order may be difficult for the boys, particularly AB, to accept, the court expects that all of the adults involved in the children’s lives would behave responsibly, “step up to the plate”, and do their level best to support the boys in their return to Ireland.”

[52]I was satisfied then, and am satisfied now, that I had a clear understanding of the strength and depth of the boys’ opposition to a return to Ireland and of the likely difficulties of a “forced return”. The boys’ voices had been heard loud and clear. It is a matter of considerable regret if AB and/or CD have been encouraged to the view that this was not in fact the case. I make these observations without any criticism of AB’s legal representatives.

[53]In considering AB’s applications, it seems to me that I am being invited to focus solely on their expressed opposition, which I was aware of at the time that I made the order, and to ignore the other important features of the case as I found them to be, most particularly relating to:(1) The boys’ emotional vulnerabilities.

(2) M’s lack of insight into the boys’ emotional needs.

(3) My conclusion that the boys’ expressed views could not be relied on as being authentically their own.

(4) My conclusion that the boys’ expressed views were at odds with other welfare considerations.

[54]In my judgment, the failed attempts to implement the return order cannot be viewed in isolation but must be seen in the overall context of the case. Sadly, they are not in fact entirely unexpected given what is known about these vulnerable boys and their mother. The social workers at Y Local Authority may be correct in their assessment that M has conducted herself appropriately during handover attempts, but she has done so against a backdrop whereby the boys could have been left in no doubt about her persistent opposition to the return

[55]It is also of note that five of the six failed handovers occurred between 29 January 2025 (hearing before Garrido J) and 06 February 2025 (hearing before Keehan J), in the space of just eight days. By this time of course, AB had been brought directly into the fray and was aware that the return order itself was to be the subject of challenge by his own legal team. Application for Joinder to Pursue Set Aside

[56]Is it in AB’s best interests for him to be joined as a party?

[57]By reference to the three circumstances in FPR 2010 Part 16A, para 7.2, as highlighted by Mr Hames:(1) (Circumstance “b”): I am not satisfied that AB’s standpoint or interest cannot be represented by one of the adult parties, namely M, as it has been before. Whilst Mr Hames submitted that he could criticise M in a way that M’s counsel could not, this was no more than a general proposition. There has been no hint of AB actually criticising or distancing himself from M.

(2) (Circumstance “d”): AB’s views and wishes have been adequately met by Ms Veitch’s report and the other means by which his views and wishes have been obtained, as I have already outlined.

(3) (Circumstance “e”): AB is indeed an older child opposing a proposed course of action, but that has been the case throughout these proceeding.

[58]It is right that AB is now “in the fray” but it by no means follows that he should remain so or that this is in his best interests.

[59]It is right, as I observed in my earlier judgment, that AB’s autonomy deserves respect. But it is difficult to see how a young person’s autonomy is respected by them being brought “into the fray” on the premise that their voice has not been heard when in fact, as I have outlined, their voice has already been heard loud and clear. Nor does it serve a young person’s autonomy for them to be brought into the fray to advance arguments which, in broadly identical terms, have already been advanced and rejected by the court. For the avoidance of any doubt, again, I make these observations without any criticism of AB’s legal representatives.

[60]So, even leaving to one side the prospects of success of an application to set aside the return order, I am not satisfied that joinder would be in AB’s best interests. Indeed, for reasons which I trust I have already made clear, there are strong welfare considerations which militate against him being joined as a party.

[61]Similarly, I am not satisfied that it is in CD’s interests for him to be joined as a party.

[62]Has there been a fundamental change which sufficiently undermines the basis of the court’s decision and order so as to require the application to be reheard?

[63]The boys’ views have not changed, though they may have expressed them in more florid terms than before. In this regard, they have continued to follow the trajectory which began with complaints and developed into robustly expressed opposition (para 62 of judgment).

[64]The boys’ distress in response to the return order and the various handover attempts is hugely regrettable but, as I have already observed, it is not entirely surprising in the overall context of the case.

[65]Insofar as the conduct of M and the SGs during handovers is relevant, there are factual disputes which it is not necessary or proportionate for me to resolve. If M has conducted herself appropriately then that is a good thing but must, as I have already observed, be viewed against the backdrop of her persistent opposition to the return order. If the SGs have behaved poorly then that is regrettable, though they have plainly found themselves in difficult circumstances. More importantly, when considering the issue of “fundamental change”, it has been an unhappy feature of the case, as reflected in my earlier judgment (paras 52 and 61), that there have been aspects of the care given to the boys by the SGs which have caused concern.

[66]As far as jurisdictional issues relating to the status of the special guardianship order are concerned, I am satisfied that this is a “red herring” arising out of a misunderstanding. There is no good reason to think other than that, in the usual way, if the boys are returned to Ireland, the Irish courts will determine welfare issues in response to an application.

[67]Taking all these matters together, insofar as there has been any change, I am not satisfied that there has been fundamental change which sufficiently undermines the basis of the court’s decision and order so as to require the application to be reheard. Joinder for Enforcement

[68]This remains a “best interests” question. If, as I have found, it is not in AB’s best interests for him to be joined as a party to pursue a set aside application, then I struggle to see how it can be in his best interests to be joined for the purposes of enforcement. To do so would simply prolong his involvement “in the fray” and would likely increase his sense of frustration as he will continue to perceive that his views and wishes are being ignored.

[69]As I have previously sought to emphasise (paras 55 and 69 of judgment), it is high time that responsibility was lifted from both boys. A Further Meeting with AB

[70]For all the reasons I have already given, I do not consider that it would serve AB’s welfare for him to meet with me again. I expect that a further meeting would simply add to his sense of frustration. Conclusions

[71]The applications made by AB and M are refused.

[72]The return order now needs to be implemented and if necessary enforced. ***************

order

two applications for permission to appeal; one application to set aside; signposting AB to his own solicitor; denigrating SG2 in CD’s earshot during the telephone call which preceded the failed McDonalds handover on 04 February 2025.

Cited in 1 later judgment

AB and CD (Children) (No 3), Re 2025