M v A (No 2: Application to Set Aside Return Order)

A Hague Convention return order may be set aside only where there has been a fundamental change of circumstances which undermines the basis of the original order. The threshold is high, and the court must distinguish reconsideration from redetermination of the substantive return application.

Where a taking parent says that they will not return with the child, the court must make a reasoned summary assessment of the likelihood of non-return, considering the overall circumstances, family history, professional evidence, reasons given, possible tactical motivation and the prospect of a change of position. If genuine non-return would expose the child to grave risk, the court must assess the effectiveness of proposed protective measures, including the likelihood of compliance.

The mother applied under the Child Abduction and Custody Act 1985, incorporating the Hague Convention 1980, to set aside an order requiring the summary return of two children to Poland. The original return order had been made on 9 December 2024 after the court rejected defences under Article 13(b) and Article 13 based on alleged domestic abuse, the mother’s mental health and one child’s objections.

After the order, the mother’s mental health deteriorated and she stated that she would not return to Poland with the children. The court had to determine whether those matters constituted a fundamental change of circumstances, and, if so, whether the children’s return would now create a grave risk of harm or an intolerable situation under Article 13(b).

1. Application granted. The return order was set aside, the children were not to be returned to Poland, and the father’s enforcement application was refused.
2. The court applied the four-stage approach in Re B: first, whether reconsideration should be permitted; secondly, the extent of further evidence; thirdly, whether the existing order should be set aside; and fourthly, redetermination of the substantive application. Stages (a) and (b) had already been satisfied. Stages (c) and (d) had to remain distinct.
3. The mother’s deterioration in mental health was not itself a fundamental change. The risk of deterioration on return had been known and formed part of the original decision. However, her subsequent conclusion that she genuinely would not return with the children was a fundamental change undermining the practical basis of the return order.
4. In assessing asserted non-return, the court made a reasoned summary assessment rather than a binary finding of fact. Relevant matters included the family history, professional evidence, the reasons for refusal, possible tactical motivation and whether the position might change after an order. The mother’s refusal was genuine rather than tactical.
5. On redetermination, the court assessed the alleged risks at their highest, while undertaking an evaluative assessment of the evidence. Separation from the primary carer, against the background of alleged domestic abuse and the mother’s vulnerability, would expose the children to grave psychological or emotional harm or place them in an intolerable situation. The proposed alternative placements and the role of Polish social services were insufficiently evidenced.
6. The court also concluded that the father’s proposed undertakings were unlikely to be effective protective measures, having regard to his conduct since the original order and the likelihood of compliance. The Article 13(b) defence was therefore established. There was no basis for exercising the residual discretion to order return.

The original return order was made by Mr Jonathan Glasson KC sitting as a Deputy High Court Judge on 9 December 2024. No appeal was brought. The present application to set aside that order was determined by the High Court (Family Division).