Re S (Children) (Inherent Jurisdiction: Setting Aside Return Order) [2021] EWCA Civ 1223

Judgment: The mother appealed against an order dismissing her applications under the inherent jurisdiction in respect of her children who were residing with their father in Libya. She submitted that the judge had wrongly interpreted and applied the rules in relation to the setting aside of an order under the inherent jurisdiction and in particular had failed to consider whether the children's welfare required the non-return order to be set aside. She also submitted that the judge had given undue weight to the likelihood that an order would not be directly and reciprocally enforced in Libya. For the father it was submitted that the judge had correctly identified the applicable law and made correct findings, and that the judge's characterisation of the mother's litigation conduct as Henderson abuse was a good example of judicial vigilance against repeat applications. In Baker LJ's judgment, to import Henderson abuse into children's proceedings was neither necessary nor appropriate: for example, where a child's welfare was in issue, a second application to the court would rarely be capable of being simply dismissed as a collateral attack on the first decision. He also disagreed as to the relevance of whether the order would be enforceable in Libya: the court was required to assess the welfare of the children, not the enforceability of its order. He also disagreed with the judge's two primary reasons for dismissing the mother's application. He concluded that the judge's approach to the set aside application had been flawed and that the mother's appeal against his decision to dismiss the application had to be allowed. Stuart-Smith LJ and Moylan LJ agreed.