Family Law Hub

C (A Child) [2013] EWCA Civ 204

  • In a tweet: A lesson in setting aside orders where there are allegations that a party's counsel put them under duress to accept terms of a consent order

    Summary: The applicant in this Hague Convention 1980 proceedings case was the child's father ("F") who was Turkish. The mother ("M") had come to England with their only child ("C"). M had mounted an Article 13(1)(b) defence but, on the second day of the contested hearing, M (who was represented by counsel) and F (who was also represented by counsel) were able to compromise matters along the following lines: 

    • M would agree to a summary return order providing that protective measures were put in place within the Turkish jurisdiction; and 
    • those protective measures were to be expressed in the form of undertakings from F, which were all set out in a schedule to the consent order. 

    M did not comply with the order though and refused to return the child to Turkey as agreed. F applied back to the courts for a warrant requiring M to attend to justify her breach of the consent order. During the few days between making obtaining the warrant and the return hearing, M dis-instructed her legal team and instructed a new team. At the return hearing, she alleged that she been the victim of domestic violence and rape at the hands of F; that was not new. However, she went on to say that her counsel ("Mr A") at the previous hearing had subjected her to extreme pressure amounting to duress so that she would consent to the return order.  

    The matter came before Mostyn J who, applying Rule 4.1(6) Family Procedure Rules 2010, listed a hearing to deal with the set aside issue.  

    Eventually, the case came before Mrs Justice Baron, a hearing which Mr A attended. By this time, M had filed two further statements and Mr A had filed one of his own. Baron J, after hearing oral submissions only, granted M's application to set aside the consent order and fixed a new date for a contested return order hearing.  She found that Mr A's "dogmatic" advice to M that she had no defence to C's removal had been pivotal to M agreeing to the return order and that M had not given fully informed consent.  

    F appealed on two grounds: 

    • the matter should not have been dealt with on submissions only; and 
    • Mr A should have been fully informed of M's complaints against him in advance of the hearing.

    In particular, F highlighted that Baron J had not dealt with the issue of duress – she had not investigated the allegation other than at a very superficial level and a proper investigation was needed where both M and Mr A could be cross-examined. He also pointed to the fact that Mr A had not seen M's final two statements and so had not had an opportunity to address her complaint in full.  

    Held: Permission to appeal was granted. 

    Lord Justice Thorpe, who gave the leading judgment, stated that the appeal had to be allowed on the simple basis that M was not entitled to be released from the consent order unless she had a good case upon which to rely. The first instance judge should have given full consideration to Mr A's response.  

    Directions were made for a new hearing to take place, at which it would be desirable for Mr A to attend, with him first seeing all of M's statements. 

    Lord Justice Longmore and Lord Justice Longmore went on to make some observations about the principles in Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] 1 WLR 2591 and Arif v Zar & Anor [2012] EWCA Civ 986 (which Baron J had applied at first instance) and how they applied to consent orders.  

    Lord Justice Longmore said: 

    "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.

    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. "  

    Lord Justice Leveson said: 

    "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.

    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.

    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."

    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."

Case note, published: 15/04/2013

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Published: 15/04/2013

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