K (A Child) (Setting Aside 1980 Hague Convention Return Order), Re

A return order made under the 1980 Hague Convention may be set aside without error by the court where new evidence establishes a fundamental change of circumstances which undermines the basis on which the order was made. The court must guard against attempts to reargue a case already determined.

Where the order is set aside, the substantive return application must be redetermined on the evidence then available. In exercising the discretion under Art. 13(2), a mature child’s authentic, reasoned and adamant objection is important but not determinative. Delay, settlement in the requested state, the absence of prompt welfare proceedings in the requesting state and the likely impact on the child may materially reduce the weight of Convention objectives.

A return order for K’s summary return to the United States under the 1980 Hague Convention was made on 31 July 2024 by Ms Victoria Butler-Cole KC in KS v CS [2024] EWHC 2115 (Fam). The judge found the removal wrongful, accepted that K objected to return under Art. 13(2), but exercised the discretion to order his return.

The order was not implemented. K subsequently expressed consistent and adamant opposition to returning, refused to co-operate with obtaining travel documents and was joined as a party. The father applied under rule 12.52A of the Family Procedure Rules 2010 to set aside the order. The mother applied for enforcement. The central issues were whether circumstances had fundamentally changed and, if so, whether K should be returned after reconsideration under Arts. 13(2), 13(b) and 20.

1. Set aside application. The four-stage approach in Re B (A Child: Abduction) [2020] EWCA Civ 1057 applied: permission to reconsider, further evidence, whether to set aside, and redetermination of the substantive application. The evidence justified reconsideration and no further evidence was required.
2. The threshold was high. A mere factual change or an attempt to reargue the original case was insufficient. The relevant question was whether the totality of the old and new evidence showed that the foundations of the original order had been swept away. The judge had to examine the reasons in the original judgment, rather than adopt an artificial comparison with the date when the order was sealed.
3. There had been a fundamental change. The original decision treated K’s position as, in substance, a preference supported by evidence that he was not saying he would refuse to return and would not be very upset. The later evidence showed a sustained, clear and deeply held refusal, expressed in both words and conduct. This was different in nature and quality, not a reargument of the original position. The Return Order was set aside.
4. Art. 13(2). K satisfied the gateway: he objected to return and had attained an age and degree of maturity at which his views should be taken into account. His views were authentic, mature, clear, consistent and rational. They carried substantial weight but were not determinative. Convention objectives, the wrongful removal, delay, settlement in England, the absence of current welfare proceedings in Georgia and the likely effect on K’s relationship with his mother were all relevant. On balance, summary return was refused.
5. Art. 13(b). In the particular circumstances, including K’s adamant opposition, mental-health concerns, substantial settlement in England and the absence of welfare proceedings capable of promptly resolving the dispute, return would place him in a situation he should not be expected to tolerate. This defence was also made out.
6. Art. 20. This defence was not established. Although a Hague return may interfere with Art. 8 ECHR family life, the court should be very cautious before treating that interference as contrary to fundamental principles of human-rights protection. The mother’s return application was dismissed.

• High Court (Family Division): the Return Order made on 31 July 2024 in KS v CS [2024] EWHC 2115 (Fam) was set aside, and the mother’s application for summary return was dismissed.