R (Children: Setting aside Hague return order)

In Hague Convention proceedings, a return order may be set aside where a subsequent change is fundamental and undermines the protective arrangements on which the order was based. The court must examine the regime that will actually govern the children after return, including the legal powers and obligations of the home-state court. A change is not merely one of detail where the original order assured the children that they would not enter a parent’s care, but the home-state order requires them to do so and gives that parent control over any alternative placement. The high threshold for reopening remains important. Delay or the unavailability of one proposed placement will not ordinarily suffice. Where the protective conflict may be resolved by the home-state court, the appeal may be adjourned and the return order stayed pending clarification.

Two United States citizen children were removed from Pennsylvania to England by their mother in August 2022. The President of the Family Division and Upper Tribunal Judge Mandalia ordered their summary return under the 1980 Hague Convention, rejecting defences based on an intolerable situation and the children’s objections. A detailed return order was made in November 2024, conditional on modification of the father’s United States custody order so that the children would remain with their mother or be placed with a third party or in foster care pending an urgent hearing.

The Pennsylvania court refused the proposed modification in May 2025 and directed that the father should assume temporary sole legal and physical custody on the children’s arrival, subject only to his later decision to permit care by a family member. The President refused applications by the mother and children to set aside the return order, holding that the change affected detail rather than its fundamental basis. The central issue on appeal was whether the United States order had undermined the protective foundation of the return order.

1. Appeal allowed and return order stayed. The Court of Appeal set aside the order dismissing the applications to set aside the return order, adjourned the appeal for restoration within 90 days, and stayed the return order pending further order.
2. The original return order was based on a finding that immediate placement with the father would be intolerable. Its central protective measure was that the father’s custody order would be suspended or modified so that the children could remain with their mother, if she remained at liberty, or otherwise receive alternative care before an urgent hearing in Pennsylvania.
3. Under Re W (Abduction: Setting Aside Return Order) [2018] EWCA Civ 1904 and Re B (A Child) (Abduction: Article 13(b)) [2020] EWCA Civ 1057, the threshold for reopening a Hague return order is high. The jurisdiction is not a means of re-arguing the original case or frustrating the earlier decision by creating or relying on an alleged change of circumstances.
4. The Pennsylvania order represented a fundamental change. It required the children to go first to the father, rejected their remaining with their mother even if she were available, and left placement with a family member dependent on the father’s later discretion. The English and United States regimes therefore differed in substance, not merely detail. The father’s undertakings could not cure the conflict because they were inconsistent with the regime governing the children immediately on return.
5. The court did not treat the unavailability of foster care or the passage of time, separately or cumulatively, as a fundamental change. It considered that placement with the paternal grandmother might provide an acceptable solution, but no such regime had yet been ordered. The appeal was therefore adjourned to allow the Pennsylvania court to reconsider the position on fuller information, including the grandmother’s availability and the position if the mother were not arrested.
6. A copy of the judgments and order was to be sent through the International Family Justice Office to the United States Hague Network Judge, and the parties were invited to agree interim directions.

• Court of Appeal (Civil Division): [2025] EWCA Civ 1426. The appeal was allowed, the dismissal of the set-aside applications was set aside, the appeal was adjourned for restoration by 10 February 2026, and the return order was stayed.
• High Court of Justice, Family Division: The President and Upper Tribunal Judge Mandalia ordered return to the United States on 28 June 2024: [2024] UKHC 1626 (Fam). The return order was perfected on 5 November 2024. On 22 July 2025 the President dismissed the applications to set aside and varied the implementation arrangements.