AB and CD (Children) (No 3), Re

A return order under the 1980 Hague Convention may be set aside without an alleged court error where new circumstances fundamentally undermine the basis on which it was made. The threshold is high, and the procedure must not become a means of re-arguing the original case. The court should ordinarily address reconsideration, further evidence, setting aside and redetermination in stages. However, where the material change is clear and already evidenced, all four stages may be dealt with at one hearing. A return order should be set aside where there is no realistic prospect of implementation in the foreseeable future and continuing the proceedings would harm the children, undermine trust or conflict with the Convention’s summary character.

The special guardians applied under the 1980 Hague Convention for the return to Ireland of two children who had been wrongfully retained in England by their mother. A return order was made on 6 December 2024 after the mother’s reliance on Article 13(b) and Article 13 was rejected. Permission to appeal was refused, and earlier applications to set aside the order were also refused.

After numerous unsuccessful implementation attempts, including a collection order and efforts to establish contact, the children continued to oppose return and contact with the special guardians. The mother applied again to set aside the return order and end the proceedings. The central issue was whether the continuing failure to implement the order amounted to a fundamental change of circumstances justifying set aside without a further extended hearing.

1. Application granted. The return order dated 6 December 2024 was set aside and the Hague Convention proceedings were brought to an end.
2. Under [2020] EWCA Civ 1057, the threshold for setting aside a return order is high. The court must guard against attempts to re-argue the original case or frustrate the previous decision by engineering a change of circumstances. The usual process is to decide whether reconsideration should be permitted, the extent of further evidence, whether to set aside the order, and, if so, the substantive application.
3. That sequence is adaptable. Where the developments relied upon are clear and already evidenced, all four stages may properly be addressed at one hearing. The court must balance procedural fairness, including the parties’ Article 6 rights, against the Article 6 and Article 8 rights of the children and mother and the overriding objective.
4. There had been extensive but unsuccessful efforts to implement the order and rebuild contact. The evidence, including the untested CAFCASS report, established no realistic prospect of implementation in the foreseeable future. That was a development which fundamentally changed the basis on which the order had been made.
5. A further two-day hearing and cross-examination were unnecessary. They were highly unlikely to alter the conclusion, while continuation of the proceedings was likely to harm the children, deepen hostility towards the special guardians and impede the rebuilding of trust. Maintaining a stay of an order that could not realistically be implemented did not promote the rule of law, and continued proceedings would conflict with the summary and swift character of the Convention.
6. Contact recommendations adopting a light-touch approach were endorsed and recorded in the order. Any further welfare litigation should, if necessary, take place in England rather than Ireland.

This was a first-instance decision. The judgment records that:

• The return order was made on 6 December 2024.
• The Court of Appeal refused permission to appeal against that order on 24 December 2024.
• An earlier set-aside application was refused by Garrido J on 29 January 2025, and permission to appeal was refused on 31 January 2025.
• Further applications to set aside and for joinder were refused on 20 February 2025. Permission to appeal was refused by the Court of Appeal on 7 March 2025.