L & Anor (Application to Set Aside Return Order), Re

The power to set aside a return order under the 1980 Hague Convention is exceptional. It requires proof of a fundamental change of circumstances which undermines the basis on which the order was made. The burden lies on the applicant, and the court must guard against attempts to re-argue the original case or rely on an objectively unreasonable change of mind.

The risk of criminal investigation, prosecution or arrest resulting from wrongful removal will ordinarily not, by itself, establish such a change. Where protective measures, such as supervised contact, do not depend on the abducting parent’s presence, that parent’s refusal to return does not necessarily undermine the return order. Arrangements for the children’s interim care are generally matters of implementation.

The children were removed from Italy to England by their mother. On 14 February 2023, a Deputy High Court Judge ordered their summary return to Italy under the 1980 Hague Convention. The order followed findings that the children were habitually resident in Italy, that their removal was wrongful, and that the defences under article 13(b) and the child-objection exception were not made out. The father gave undertakings, including that he would not have unsupervised contact with the children pending consideration by the Italian family court.

The mother later learned that criminal proceedings in Italy were continuing ex officio despite the father’s withdrawal of his complaint. She refused to return to Italy and applied under Part 18 to set aside the return order, contending that her possible arrest or detention would expose the children to intolerable harm and fundamentally undermine the original decision. The issue before the court was stage (c) of the Re W process: whether the existing return order should be set aside.

1. The application to set aside the return order was dismissed. Under [2018] EWCA Civ 1904, the court ordinarily considers four stages: whether to permit reconsideration; the extent of further evidence; whether to set aside the existing order; and, if set aside, whether to redetermine the substantive application. The present hearing concerned only the third stage.

2. The threshold is high. The applicant must prove a fundamental change of circumstances which undermines the basis on which the original order was made. The burden rested on the mother. The court must prevent an application becoming an attempt to re-argue the original case or frustrate the return order through a change of circumstances created by the applicant.

3. The continuing Italian criminal investigation did not amount to such a change. The father had withdrawn his complaint, but the proceedings continued ex officio at the prosecutor’s discretion. On the expert evidence, the actual risk of arrest and detention was low and could be mitigated by the mother returning with the children and engaging with the Italian authorities. The risk of criminal consequences arising from the mother’s own wrongful removal was a risk ordinarily associated with abduction and could not, without more, fundamentally undermine the order.

4. The mother’s refusal to return did not itself undermine the order. It was an objectively unreasonable change of mind based on self-generated circumstances. The original order identified supervised contact, rather than the mother’s presence in Italy, as the relevant protective measure. Supervised contact could be implemented without her presence. If necessary, the children could live temporarily with persons proposed by the father or in state care until the Italian family court was seised. Those arrangements concerned implementation, not the fundamental basis of the return order.

5. On the facts found, the mother had not established a fundamental change of circumstances undermining the return order. The application was dismissed, with implementation proposals to be addressed subsequently.

A Deputy High Court Judge ordered the children’s summary return to Italy on 14 February 2023. No application for permission to appeal that order was made.

The mother subsequently applied under Part 18 to set aside the return order. The High Court (Family Division) dismissed that application.