Hague Convention return order set aside where receiving court declines protective measures

The Court of Appeal has allowed an appeal against a decision refusing to set aside a Hague Convention return order, finding that discrepancies between the protective measures intended by the English court and those actually implemented by the receiving court constituted a fundamental change in circumstances.

The case concerned two American children, aged 11 and 13, who were wrongfully removed to England by their mother in August 2022 following disputed allegations of sexual abuse against their father. The mother's asylum claim was rejected, and in June 2024 the President of the Family Division ordered the children's return to the United States under the 1980 Hague Convention.

Critically, the original return order was predicated on protective measures ensuring the children would not be placed in their father's immediate care upon arrival. The court found that whilst the children's repatriation would be traumatic, particularly if their mother was arrested, placement with a third party or in foster care for a short period would not create an intolerable situation under Article 13(b).

The return order of 5 November 2024 was carefully structured to prevent implementation until the Pennsylvania custody order had been modified. The father agreed to seek an urgent hearing and to ensure the children would not be placed in his care pending that hearing, but would instead remain with their mother or, if she was detained, be placed in foster care or with a suitable third party.

However, when the matter came before the Court of Common Pleas in Delaware County in May 2025, Judge Rashid declined to approve the proposed arrangements. The US court ordered that the father should assume temporary sole custody of the children upon arrival, with discretion to place them with a known family member only if he subsequently determined they were experiencing extreme emotional or mental health issues in his care. Importantly, the order also precluded the children remaining with their mother even if she was not detained.

The President refused the subsequent application to set aside the return order, reasoning that whilst the details had changed, the basic structure remained intact—the children would still be with a third party rather than their father, pending an urgent hearing.

The Court of Appeal, comprising the Lady Chief Justice, Lady Justice King and Lord Justice Peter Jackson, disagreed. The court held that the protective arrangements were not mere legal niceties but matters of substance, given the children's extreme feelings about their father and the difficulty of the return itself. The core protection promised by the original return order was an assurance that the children would not be placed with their father on arrival, whatever happened.

The US Order provided no such assurance. Under its terms, the children would go first to their father, who would "call the shots". The original return order provided that children should optimally remain with their mother and in no circumstances go to their father; the US Order directed that they shall go to their father and in no circumstances remain with their mother. This asymmetry amounted to a conflict leaving the children unprotected.

The court adjourned the appeal for 90 days to allow the Court of Common Pleas an opportunity to consider the position afresh, now that a suitable family member (the paternal grandmother) had been identified as available for temporary care. The return order was stayed pending further order.

The decision reinforces that protective measures under the Hague Convention must be effective in practice, not merely contemplated in theory, and that fundamental changes undermining such measures warrant reconsideration of return orders despite the high threshold for doing so.

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