Case No: B4/2012/3389 
Neutral Citation Number: [2013] EWCA Civ 204
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
THE FAMILY DIVISION
(HER HONOUR JUDGE BARON)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 24th January 2013

Before:

LORD JUSTICE THORPE
LORD JUSTICE LONGMORE
and
LORD JUSTICE LEVESON
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In the matter of C (a child)

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Mr Henry Setwright QC and Mr Hassan Khan (instructed by Miles and Partners) appeared on behalf of the Appellant.

Mr Abid Mahmood and Mr Nazmum Ismail (instructed by Fountain Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Thorpe:

1.	In this case there were contested proceedings for a summary return order under the Hague Abduction Convention of 1980.  The applicant was the Turkish father being left behind in Turkey.  The respondent was the mother who had come to this jurisdiction with the only child of the family.  The contested application was listed for hearing before a deputy judge of the division, HHJ Coates, on 26 September 2012.  The mother's defence was restricted to the exception provided by Article 13(1)(b) of the Convention.  There was no other basis upon which she could resist the return order.  She had instructed solicitors, who had in turn instructed junior counsel from a set of chambers specialising in this area of work.  Unfortunately, five days before the final hearing counsel originally instructed had to return his brief and the case went to Mr A.  He prepared a position statement which was filed with the court.  That position statement set out his battle order.

2.	On the day following, considerable discussion between Mr A and his client, he informed the judge that terms had been agreed.  The fundamental first term was that the mother would consent to a summary return order providing that protective measures were put in place within the Turkish jurisdiction.  Those protective measures were to be expressed in the form of undertakings from the father, which were all set out in a schedule to the consent order.  No doubt there was a degree of negotiation between counsel, both as to the nature of the undertakings and as to their precise drafting.

3.	The order provided for return on 21 October.  The mother did not comply.  Accordingly, on the 26th the father applied without notice for a warrant requiring the mother to attend to justify her breach of the consent order.  That application was returnable on the 30 October in the afternoon.

4.	In the interim the mother withdrew instructions from those who had instructed Mr A, instructed another firm of solicitors, and, on the 30th, advanced a case which was first that she had been the victim of domestic violence and rape at the hands of the applicant father.  That was nothing new, but it was an amplification of her first statement which had been filed on 21 August.

5.	What was a novelty within her evidence of the 30th was the allegation that at the hearing on 26 September Mr A had subjected her to extreme pressure amounting to duress, and only as the victim of duress did she apparently consent to the return order.  That matter was adjourned over for consideration on 9 November.  

6.	On the 9th the case was listed before Mostyn J, who pointed out the possible application of Rule 4.1(6) of the Family Procedure Rules 2010, which reads: 

"A power of the court under these rules to make an order includes a power to vary or revoke the order."

So, going down that route, he set up a hearing before a judge of the Division on 13 December.  

7.	On 9 November the mother filed a third statement.  However, counsel appearing on the 9th were unable to agree the drafting of the order to reflect Mostyn J's directions, and accordingly the case came into the list yet again on 28 November when Hogg J, amongst other directions, sought a statement from Mr A exhibiting "his attendance note" of the hearing of 26 September. She also provided that the mother should file and serve further evidence by 6 December.  

8.	Pursuant to that order Mr A filed a statement to which he exhibited his note of the developments on 26 September.  That was not, in a true sense, an attendance note: it was prepared in response to his unexpected reinvolvement in the litigation and the direction of Hogg J.

9.	Mr A filed the statement on 4 December and on the 7th the mother filed her fourth statement.  It is, I think, not unfair to her to say that with each passing statement she has, as it were, amplified her case both in relation to the Turkish history and in relation to her perception of the experience that she had had when represented by Mr A on 26 September.

10.	All this then came before Baron J on 13 December.  Hogg J had requested that Mr A should, within his statement, make known his availability on the 13th.  He had indicated in his statement that he had nothing in his diary for the 13th other than a half hour directions appointment.  Accordingly, he was available at the hearing before Baron J.  Baron J delivered a judgment at the end of oral submissions granting the mother's application to set aside the consent order and fixing a fresh date for a contested trial of the return order application and the Article 13(1)(b) exception for 28 January with a time estimate of one day before a judge of the Division.  

11.	The basis for her so concluding is relatively easily seen from a perusal of her judgment.  She referred to the mother's various statements setting out her case, both in relation to her experiences in Turkey and also in relation to her communications with Mr A on the 26th.  She then referred to the statement made by Mr A and said (paragraph 9 of her judgment): 

"Those paragraphs in essence chime with the evidence which the mother has placed before this court in her more recent statements. They are of course far more colourful, and I take into account that what she says may well be self-serving to a degree. The indication in her statements is that that advice was pivotal to the decision to consent to a return to Turkey. She is probably correct in that summation because if you are essentially told you have no defence, you have little room for manoeuvre."

12.	Baron J then went on to look to the nature of the mother’s evidence in support of the Article 13(b) exception.  She had regard to recent cases in the Supreme Court, namely Re E (Children) and Re S (a child) and said: 

"I consider that the substance of the mother's Article B defence is less black and white than was portrayed by the attendance note. By that comment I am not seeking to assert that she has a good defence, but I am persuaded that the advice which Mr A gave her was perhaps rather too dogmatic."

13.	Finally she concluded by saying in paragraph 11: 

"For true consent to be given the underlying factual matrix from an objective standpoint must be clear and fair.  What operated on the mind of this particular mother seems to me to indicate that consent was not fully informed."

14.	Mr Henry Setwright QC, leading Mr Hassan Khan, says that really this is profoundly flawed.  The judge has not dealt with the issue raised by the mother, namely duress.  She has not investigated that allegation other than most superficially.  A proper investigation enabling clear findings to be made required a hearing not only with the mother subject to cross-examination but also Mr A.  Mr A had made what contribution he was asked to make, but the significant point is that he had not had access to the material that was asserted against him by the mother.  He will, of course, have known the basic nature of her complaint contained in her first statement.  But it is obvious that he could not have seen the material in her fourth statement, which was filed after the submission of his statement, and it seems reasonably clear that he had not had access to her third statement either. 

15.	Mr Mahmood, who seeks to defend the judge, has told us that there was, by chance, a meeting between Mr A and Mr Haynes on the 9 November, Mr Haynes then holding the brief for the father.  Mr Mahmood says that he is in no doubt that the nature of the complaints brought by the mother against Mr A were explained by Mr Haynes verbally and relatively informally and that Mr A had the background and the flavour of the mother's assertions.  Mr Mahmood says that he had that from Mr Haynes himself.  All that may be; he may have had a general indication, but it was plainly essential that he saw the case that was made against him, the criticisms and the complaints in their fullest written form.  This was a serious assertion to make against a member of the Bar and it carried the risk that Mr A's professional conduct would be criticised by a judge of the Division.  It is simply fundamental and elementary that there could be no investigation of the essential issue without those preliminary steps.

16.	We have had our attention drawn to an email from the father's solicitors to the mother's replacement solicitors on the 10th in which they sought reassurance that Mr A had had sight of the mother's developing written case.  The response of the 10th was well, we must check with counsel and we will then revert to you.  We then see an email from Mr Mahmood later in the same day saying in terms that there was no order or permission for any of the statements to be given to anyone outside the current legal representatives and that if anyone outside that narrow band were to receive the statements, or have read to them their content, that would amount to a contempt of court.  With great respect to Mr Mahmood, I think that line was mistaken and I think it effectively guaranteed that the fixture on 13 December could not procedurally fulfil the purpose for which it had been directed by Mostyn J.

17.	This is an unsatisfactory story.  It is, I am glad to say, quite exceptional in my experience of litigation in this field.  I have reached the conclusion that we must manifestly grant permission and, equally, we must allow the appeal on the simple basis that the mother was not entitled to release from the consent order unless she had made good the case upon which she relied.  The judge could not possibly find that case made good without giving full consideration to Mr A's response to the detailed assertions made against his conduct on the 26th.

18.	It is important that the months that have been lost, indeed thrown away, given the failure to ensure by directions order that the case would be fully prepared for conclusion on the 13th.  It is important that the time lost should be recovered as far as it is humanly possible to recover it.  

19.	So my proposal would be that the remitted investigation be attempted on the 28 January on Monday of next week.  Plainly the mother and her counsel are all ready and prepared for the Family Division hearing on that day.  Plainly the father and his counsel are so prepared.  The only question mark is whether Mr A would be available to give evidence on Monday, and two things must, I think, be made plain.  First, he is to receive at once, and that means today, the four statements -- he will probably still have the first -- that have been made by the mother.  If he has other professional commitments, as he probably has, he must seek his release from them to ensure that he is available to the judge on Monday.  That issue can then be resolved.  Obviously if the mother's application for release fails then the order of the 26 September stands and the only issue for the judge will be the new timetable for implementation.  If the application succeeds then there will have to be an immediate investigation on the earliest date available for the fresh listing of the application for summary return.

Lord Justice Longmore: 

20.	I agree.  I will just add this.  I am left with some concern whether the principles set out in Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] 1 WLR 2591 and Arif v Zar & Anor [2012] EWCA Civ 986 apply without reservation to consent orders.  In some ways a consent order may be more sacrosanct than an interim order of the court made in the course of litigation such as was discussed in Tibbles, since a change of circumstances short of frustration does not usually justify setting aside an agreement, let alone an agreement formalised by an order of the court.  On the other hand, duress for undue influence may, if proved, justify setting aside an agreement, and perhaps even a court order made by consent, just as much as a misstatement for non-disclosure, such as is referred to in paragraph 39(ii) of the judgment of Rix LJ in Tibbles.

21.	Moreover, L v L [2008] 1 FLR 226 appears to hold that, at any rate in financial applications, bad advice about the law cannot be a reason for setting aside an order made by consent.  That may not of itself, of course, touch the question of duress. 

22.	I make those comments because Baron J appears to have proceeded as if Tibbles were the law in this area, no doubt with the connivance of counsel perhaps as a result of a suggestion made by Mostyn J in the course of the interlocutory procedures.  I would just urge caution on that aspect of the matter and invite counsel to do a bit more research before the matter is restored on Monday.

Lord Justice Leveson: 

23.	I also agree.  In order to set aside a consent order on the grounds that the will of one of the parties, in this case the mother, has been overborne by undue pressure from her own legal adviser, it is inevitable that legal professional privilege will have to be waived in order that the legal advisor can deal with the allegation made against him, and in such a way as to permit the other party, in this case the husband, to challenge it and thus preserve the consent order of which he has the benefit.

24.	For the judge to decide that issue inevitably requires oral evidence in the normal way, unless of course that undue influence is conceded.  In this case the judge considered the authority of Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies [2012] 1 WLR 2591 and identified the ratio as establishing that the court would not vary or revoke its own order save where there had been a material change of circumstances since the order was made or the original order can be shown to have been based on a misstated fact or material non-disclosure.  That test might be entirely apposite following a contested hearing.

25.	As Longmore LJ has observed it is not necessarily the correct approach in relation to a consent order, even less so where the misstatement is said to be advice from counsel or solicitor to his own client.  In L v L [2008] 1 FLR 26 Munby J as he then was, considered the position of the consent order in relation to financial relief.  It was argued before him that the husband had been placed under unfair pressure by the wife falling short of undue pressure, he had received bad advice, the order included terms that the court had no jurisdiction to order and the generosity of the agreement rendered it unfair.   Munby J said at paragraph 95: 

"As a matter of law, it is not open to the husband to argue that the order should be set aside because of bad legal advice.  The authorities demonstrate… that that contention is trumped by the need for finality. Nor can the husband rely upon the fact, assuming it to be the fact, that he was put under pressure.  Let it be assumed for the sake of argument that Balcombe J was correct in Tommey v Tommey. Let it be assumed, therefore, that a consent order can be set aside on the grounds of duress or undue influence.  But pressure, even unfair pressure, falling short of undue influence cannot, in my judgment, suffice on any view. As Mr Scott says, and I agree, the need for finality and certainty makes it inappropriate to set any lower hurdle. And the simple fact, as we have seen, is that the husband explicitly disavows any allegation of undue influence and accepts that the influence which he alleges cannot of itself suffice to set aside the order."

26.	I appreciate that the emotional pressure surrounding an application related to the Hague Convention provides a different context to that involving a case concerned with financial relief, but in relation to the arguments in this case a high threshold is inevitable if the vital relationship between parties and their legal advisers is to be maintained without being imperilled by concern that robust advice, even if unpalatable, will lead to satellite litigation of the type that this case has seen.

Order:  Appeal allowed