S and T (Children: Return to Italy) (No.2), Re [2025] EWHC 1685 (Fam)

[2025] EWHC 1685 (Fam)Case No FD24P00857
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 July 2025
Before
THE HONOURABLE MR JUSTICE MCKENDRICK
Between
A MotherApplicantA FatherRespondentRe S and T (Children: Return to Italy) (No.2)Respondent
for The Applicant did not appear and was not representedMr Mazzone (employed by Child and Child) for RespondentHearing Hearing dates: 3 July 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. 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.McKendrick J:
[1]By way of a Family Procedure Rules Form D11 application notice, dated 3 July 2025, the applicant seeks to set aside a return order which provides for her children to be returned to Italy from England and Wales. She also seeks a stay of execution of the return order.[2]This application concerns the parties’ two children: a boy born in September 2020 and a girl born in March 2022.[3]This matter comes before me as urgent applications judge. Fortuitously, I was the trial judge and handed down judgment on 8 April 2025. The judgment sets out the background and inter alia rejects the applicant’s Article 13b 1980 Hague Child Abduction Convention exception to return. That judgment is found at [2025] EWHC 835 (Fam). This permits me an understanding of the background to properly assess the set aside application.[4]The applicant applied to appeal the return order which was sealed on 10 April 2025. Her application for permission to appeal and for a stay was filed on 24 April 2025. The return order made provision for the children to be returned to Italy by 23:59 on 25 April 2025. Warby LJ, sitting as duty vacation Lord Justice, granted the stay on 25 April 2025.[5]On 12 May 2025 Moylan LJ refused permission to appeal the 8 April 2025 return order.[6]The applicant applied to set aside the return order. This was heard on 7 June 2025 by HHJ Vavrecka, sitting as a deputy High Court Judge. He dismissed the application. He decided that the applicant’s case did not meet the first stage of the relevant approach such that there was no justification for reconsidering the previous order. In doing so, he applied the approach set out in Re B (A Child) (Abduction: Article 13(b)) [2020] EWCA Civ 1057.[7]The applicant appealed his order. Her application for permission to appeal was determined on the papers by Moylan LJ on 24 June 2025. His reasons included the following:
“Initially, the mother relied on her pending application to the European Court of Human Rights under Rule 39, filed on 12 June 2025, in support of her application for permission to appeal. That application has apparently been refused although it appears that the mother has made a further application. In the absence of any order being made by the ECtHR, there is no justification to delay determining the mother’s application for permission to appeal. Additionally, the mother says that her proposed appeal is “grounded in substantial new evidence, critical factual corrections and post-judgment developments which render the original decision unsound - particularly in regard to enforceability of protective measures in Italy, grave risk of psychological and physical harm upon return, and legal as well as practical obstacles to implementing a stable, rights-compliant return”
. She contends that “these developments also engage and breach fundamental rights under the” ECHR. Many of the matters on which the mother relies seek directly to challenge the April 2025 decision, and to reargue her case prior to that decision, rather than the decision of June 2025. The mother’s application for permission to appeal the former order was refused on 12 May 2025 so that it is only matters which seek to challenge the latter decision which are relevant to her current application. The issue of the enforceability of the father’s undertakings, for example, was addressed in the order dated 12 May 2025. None of the matters, including the “new developments”, relied on by the mother undermine the judge’s decision to dismiss her application to reopen the previous decision. He considered the grounds on which her application was based and was entitled to decide that they did not justify reopening the previous decision. There is no real prospect of the Court of Appeal deciding that he was wrong.[8]Further to the dismissal of the application for permission to appeal. HHJ Vavrecka remade the return order on 27 June 2025. His order provides for a comprehensive protective framework including undertakings. His order requires the applicant to return the children to Italy by no later than 23:59 5 July 2025.[9]Moylan LJ (with the agreement of Peter Jackson and Carr LJJ (as she then was) set out the law in respect of an application to set aside a 1980 Hague Convention return order in re Bsupra as follows (with my emphasis added in underline): “Next, I must deal with the law relating to an application to set aside an order under the 1980 Convention. I propose, first, to deal with the authorities and the rules. After this, I deal with the process which I suggest should be adopted including, I emphasise, the approach which the court should take at each stage of the process, from the making of the set aside application to the rehearing of the substantive application under the 1980 Convention. Although there is some jurisprudential history on the question of whether/when the court can set aside an order under the 1980 Convention, I do not think it is necessary to go back further than Re W (Abduction: Setting Aside Return Order) [2019] 1 FLR 400 in which I gave the lead judgment. This is not to elevate this decision above the other, earlier, cases to which we were referred but because the insertion of r.12.52A into the FPR 2010 has resolved the question of whether there is jurisdiction to set aside such an order. In Re W, I made the following observations: the first, in the context of whether the court has a set aside power: "[37] However, before considering those issues, it seems to me that there would be considerable advantages to the judge who made the final order being asked to determine whether the asserted change of circumstances justifies any reconsideration of the order and, if it does, whether it is of sufficient impact to justify a rehearing. I would express the test as being whether there has been a fundamental change of circumstances which sufficiently undermines the basis of the court's decision and order to require the application to be reheard." My conclusions were as follows: "[66] In conclusion, my provisional view is that the High Court has power under the inherent jurisdiction to review and set aside a final order under the 1980 Hague Convention. This power can be exercised when there has been a fundamental change of circumstances which undermines the basis on which the original order was made. I set the bar this high because, otherwise, as Mr Devereux QC observed, there would clearly be a risk of a party seeking to take advantage of any change of circumstances such as a simple change of mind. [67] I would add that the re-opening of a final Hague order (whether for return or non-return) is likely to be a rare event indeed and that, as the process is a summary one, any application for such an order will necessarily have had to be filed without delay. Further, where an application for rehearing has been issued, the court will case-manage it tightly so that only those applications that have a sufficient prospect of success are allowed to proceed and then only within parameters determined by the court." I was there dealing, and only dealing, with the set aside application. I was not dealing with the approach the court should take at any consequent rehearing. In that case, the judge below had set aside the return and directed a rehearing of the substantive application. The judge's decision to set aside the original order was upheld. In Re W I proposed, what I described as, a "high" bar when the court is determining an application to set aside an order under the 1980 Convention, namely (I repeat) "a fundamental change of circumstances which undermines the basis on which the original order was made". This approach has been adopted, as part of the changes to the FPR 2010, in PD12F paragraph 4.1A, as set out below. That this approach has been adopted by the Family Procedure Rules Committee, fortifies my view that this is the right test when the court is deciding whether to set aside an order.” "[37] However, before considering those issues, it seems to me that there would be considerable advantages to the judge who made the final order being asked to determine whether the asserted change of circumstances justifies any reconsideration of the order and, if it does, whether it is of sufficient impact to justify a rehearing. I would express the test as being whether there has been a fundamental change of circumstances which sufficiently undermines the basis of the court's decision and order to require the application to be reheard." "[66] In conclusion, my provisional view is that the High Court has power under the inherent jurisdiction to review and set aside a final order under the 1980 Hague Convention. This power can be exercised when there has been a fundamental change of circumstances which undermines the basis on which the original order was made. I set the bar this high because, otherwise, as Mr Devereux QC observed, there would clearly be a risk of a party seeking to take advantage of any change of circumstances such as a simple change of mind. [67] I would add that the re-opening of a final Hague order (whether for return or non-return) is likely to be a rare event indeed and that, as the process is a summary one, any application for such an order will necessarily have had to be filed without delay. Further, where an application for rehearing has been issued, the court will case-manage it tightly so that only those applications that have a sufficient prospect of success are allowed to proceed and then only within parameters determined by the court."[10]The papers were sent to me today and I made directions for the application to be served with short notice on the respondent father and I listed the matter on notice urgently for 3 pm. A remote link was circulated for those unable to attend the Royal Courts of Justice.[11]The applicant was informed of the hearing and she asked where to attend. Shortly thereafter she wrote:
“I respectfully share, that in order for me to be represented at the hearing I have to secure legal aid, for which I require a direction from the judge that I would benefit from the representation. Otherwise it would not be fair that my husband is represented and I am not. I kindly ask for Judge’s direction to stay the execution of the order and allow me to have a fair chance at trial through legal presentation.”
[12]She did not attend the hearing. The start time was delayed until 3.30 pm but she did not appear and did not explain her absence.[13]The respondent appeared remotely with his solicitor.[14]The D11 application form states that the return order of HHJ Vavrecka should be set aside because of “the multiple material misrepresentations to the court in [the respondent’s] original Hague application, including misleading claims about the children’s habitual residence, his own place of residence, and our family life in the UK..” The D 11 application is supported by a 59 page bundle. I did not see any up to date witness evidence.[15]As set out above, the court was asked to adjourn the matter because the applicant submits it is unfair she acts in person whilst the respondent has been represented today. The court is well used to ensuring equality of arms and a fair hearing for litigants in person. I therefore refused the application to adjourn what is after all a simple application. Delay would in any event be contrary to the welfare interests of the children at the heart of this litigation. I am satisfied the applicant had the opportunity to join the hearing and to fairly participate. She chose not to.[16]Applying the first stage of LJ Moylan’s re B formulation I see no basis to set aside the return order. There has been no fundamental change of circumstances. And there is no information which undermines, let alone sufficiently undermines, the basis for the earlier return order. The applicant is repeating submissions made over three months. These have been considered by HHJ Vavrecka, the Court of Appeal and by me originally. There has been fulsome judicial scrutiny over three months. The challenges against the return orders have failed. There is nothing new in the material filed at court today. Most of the documents were filed for the original hearing. Having gone through the documents I cannot see anything relevant which postdates HHJ Vavrecka’s order.[17]It appears the applicant has made at least six attempts to challenge the original April decision to return the children to Italy, their country of habitual residence to permit the Italian courts to determine their medium and long term welfare. I understand all of these have failed, except the 25 April stay. It appears she is unable to accept the decision.[18]The 1980 Hague Convention intentionally adopts a summary procedure. Part of the ethos of the 1980 Hague Convention is to ensure the summary and therefore speedy resolution of return order applications because it is accepted that wrongful abductions are harmful to children. It is disappointing therefore that almost three months have passed since the original return order.[19]Litigants, like this applicant, who drag out return orders by making multiple set aside applications and applications for permission to appeal do not do so in a neutral manner. The ongoing delay in returning these children to their country of habitual residence, to permit their courts to determine their welfare, is damaging. For that reason, I have drafted this short judgment and it will be translated into Italian and provided to the Italian courts and social services authorities. Greater consideration should have been given to the impact on the welfare of these children over the last three months. They have been in a state of flux. This is no doubt negatively impacting on them. Whether the impact of delaying the return order should form part of the Italian authorities’ assessment of the children’s future welfare is, of course, entirely a matter for them.[20]I invite the respondent’s counsel to draft a short order, dismissing the D 11 application.[21]Whilst often a stay would be appropriate to permit a party a short opportunity to approach the Court of Appeal to appeal (see paragraph 36, N (Children: Interim Order/Stay [2020] EWCA Civ 1070) given the clear terms of Moylan LJ’s refusal of permission to appeal and HHJ Vavrecka’s further return order, there is no merit in granting a stay. The return order before 23:49 5 July 2025 stands.