M v B

A court may set aside a Hague Convention return order without an alleged error only where later events amount to a fundamental change of circumstances that undermines the order’s foundations. The threshold is high. A circumstance expressly contemplated by the original order, or arising from appellate litigation or resistance to implementation, will not ordinarily qualify. Delay may matter in an Article 13(b) hearing, but a set-aside application is not a rehearing of that defence. The critical question is whether the original protective framework has disappeared or remains capable of operation.

The father applied to enforce a return order and the mother applied to set it aside under the inherent jurisdiction, reflected in the Family Procedure Rules 2010 rule 12.5(2)(a) and Practice Direction 12F. Child A was born in England to Romanian parents and lived in Romania for about 14 months before the mother brought him to England in August 2024.

Following contested proceedings under the 1980 Hague Convention, Peel J found Romania to be the state of habitual residence and ordered return. He rejected the mother’s Article 13(a) and Article 13(b) defences, while accepting her abuse allegations at their highest and imposing protective conditions. The Court of Appeal dismissed her appeal on 11 December 2025. The judgment records subsequent refusals of permission and an appeal to the Supreme Court. The central issue was whether later events fundamentally undermined the original order.

The mother’s application to set aside the return order was dismissed. The order remained valid and enforceable. The conditions in paragraph 7 had been satisfied, so the stay ended. The mother was directed to provide flight and bank details, the father was to make the required payments, and Child A was to return to Romania in her care by 22 July 2026. A short review hearing was ordered, while collection and committal applications were reserved.

1. Power and threshold. The inherent jurisdiction, now reflected in the Family Procedure Rules 2010 rule 12.5(2)(a) and Practice Direction 12F, permits reconsideration of a return order without an alleged error only where a fundamental change of circumstances undermines the basis of the original order. The threshold is intentionally high. The court applied Re W (Abduction: Setting Aside Return Order) [2018] EWCA Civ 1904. The four-stage process identified in Re B (A Child) (Abduction: Article 13(b)) [2020] EWCA Civ 1057 was also part of the applicable framework.
2. Protective arrangements. The possibility that a Romanian court might require disclosure of the mother’s address had been expressly contemplated by the original order. Unlike Re R (Children: Setting Aside Hague Return Order) [2025] EWCA Civ 1426, where the central protective mechanism had ceased to exist, the protective framework here remained capable of operation. The alleged change therefore did not meet the threshold.
3. Welfare proceedings and delay. The continuation of Romanian welfare proceedings and the father’s pursuit of welfare orders had been addressed in the original judgment and did not constitute new circumstances. Delay may be relevant when considering an Article 13(b) defence, as noted in Re D (Abduction: Rights of Custody) [2006] UKHL 51, but this was not a fresh Article 13(b) hearing. Delay arising substantially from appellate proceedings and resistance to implementation did not undermine the original decision. The court also should not go behind the Romanian court’s welfare conclusions where that court was the proper forum and had heard evidence from both parents.

1. High Court (Family Division): Peel J made a return order on 1 October 2025 following Hague Convention proceedings.
2. Court of Appeal: The mother’s appeal was dismissed on 11 December 2025. The judgment records subsequent refusals of permission to appeal and an appeal to the Supreme Court, without stating a further outcome.
3. High Court (Family Division): The present court dismissed the mother’s set-aside application, confirmed that the return order remained enforceable, and gave directions for implementation.