HG (Abduction: Application to set aside return order)

A return order under the 1980 Hague Child Abduction Convention may be reconsidered only where a fundamental change of circumstances undermines the basis of the original order. The court must prevent attempts to reargue a concluded case, but must assess genuinely new circumstances through the four-stage procedure for setting aside Convention orders.

Where current medical evidence makes the ordered accompanying parent unable to travel, the court must address whether the order can realistically be implemented. It should not substitute an immediate return by the other parent where that would fundamentally alter the return arrangements and could expose the child to psychological harm or an intolerable situation. A temporary impediment may justify a stay and a later rehearing of the setting-aside application.

The father obtained an order for the summary return of HG from England and Wales to Texas. The original judgment, Re HG (A Child) (Abduction: Consent, Acquiescence, Art 13b) [2026] EWHC 1385 (Fam), rejected the mother’s defence under Article 13(b) of the 1980 Hague Child Abduction Convention. The order contemplated that the mother would accompany HG to the United States.

While pregnant, the mother applied to set aside or stay the order, relying on evidence from treating clinicians that she was unfit for air travel because of deterioration in her mental and physical health. The High Court refused both forms of relief. On appeal, the mother also sought to adduce further medical evidence. The central issue was whether the changed medical position required a stay or justified reconsideration of the application to set aside the return order.

1. Appeal allowed. The court admitted the further medical evidence. Its relevance to the mother’s current condition meant that the interests of justice required its consideration, notwithstanding that the court did not undertake a detailed analysis of the Ladd v Marshall factors.
2. The High Court has an inherent power to set aside a Convention return order where a fundamental change of circumstances undermines the basis on which it was made. The applicable procedure, drawn from Re B (A Child) (Abduction: Article 13(B)) [2020] EWCA Civ 1057, requires the court to decide whether to permit reconsideration, determine the further evidence, decide whether to set aside the order, and only then redetermine the substantive return application.
3. The existing order could not presently be implemented as intended. The mother had been advised by two treating clinicians that she was unfit to fly in late pregnancy. The alternative of sending HG immediately with the father was unrealistic. HG had not seen his father for months, had never been separated from his mother, and was still breastfeeding. That course would fundamentally change the arrangements underlying the return order and was at least arguably capable of creating a grave risk of psychological harm or an intolerable situation under Article 13(b).
4. The judge ought to have stayed the order when the medical reports were available. Any concern about the history given to the treating clinicians did not remove the need to explore their expert opinions that the mother was unfit to travel.
5. The court did not finally determine whether the changed circumstances justified setting aside the return order. The inability to fly was likely temporary, and the circumstances after the birth, including the mother’s health, care of two children and immigration position, could not confidently be predicted. The stage-(c) application was therefore remitted for rehearing before another Family Division judge no earlier than six weeks after the birth. If the order is then set aside, the court must proceed to redetermine the substantive application. The stay was extended until that rehearing.

• Court of Appeal (Civil Division): Allowed the mother’s appeal against the refusal to set aside or stay the return order. The court stayed the order and remitted the setting-aside application for rehearing.
• High Court of Justice, Family Division: In Re HG (A Child) (Abduction: Consent, Acquiescence, Art 13b) [2026] EWHC 1385 (Fam) , ordered HG’s return to Texas. On 19 June 2026, the same judge refused the mother’s later application to set aside or stay that order.