High Court ruling reshapes custody case

In the recent legal case of M v A (No 2: Application to set aside return order, the High Court of Justice in England faced a difficult situation involving the custody of two young children, aged six and nine, following their mother’s application to set aside an order that mandated their return to Poland. The ruling, delivered by Mr Nicholas Allen KC on June 2, 2025, brought to light significant considerations regarding child abduction and parental rights within the framework of international law.

The case stemmed from a prior judgement by Deputy High Court Judge Mr Jonathan Glasson KC, who had ordered the return of the children to Poland after their retention in England was deemed wrongful under the Child Abduction and Custody Act 1985. M, the mother, had been residing in England with the children after a holiday planned for a month; however, she decided to extend her stay, citing concerns over domestic abuse she suffered during her relationship with F, the father, who resisted the application.

The court's focus lay on whether M could argue effectively that returning the children to Poland would expose them to a "grave risk" of physical or psychological harm under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction, which allows exceptions to mandatory return orders in such circumstances.

A critical part of the ruling was the evaluation of M's mental health. Expert testimony indicated that M had been experiencing severe depression and anxiety, which could worsen significantly if the family was separated upon their return to Poland. The court assessed whether M's declining mental health constituted a fundamental change of circumstances needing reconsideration in light of the prior ruling and concluded that her mental health was deeply intertwined with her resistance to the return.

Furthermore, the court considered the allegations of domestic abuse. M contended that if forced to return, both her well-being and the children's safety could be compromised. The judgement underscored the significance of these allegations in understanding the family dynamic and the psychological effects on the children due to their mother's experiences.

In addressing the likelihood of M returning with the children, the court scrutinised her assertion that she would not return to Poland regardless of the court's decision on the return order. F denied this, characterising M's claims as tactical, yet the court discerned a palpable link between M's mental health crisis and her perceived inability to return. It was thus recognised that her mental state significantly influenced her decision-making regarding the children's return.

Ultimately, the court ruled in favour of M’s application to set aside the return order. Mr Allen underscored that enforcing the return would jeopardise M's mental health, which would indirectly affect the children and could inflict psychological harm on them due to existing tensions from domestic abuse. The court emphasised that proceedings must consider what is in the children's best interests, opting for their continued residence in England rather than a potentially harmful return to Poland.

This ruling highlights the complexities surrounding parental rights and protections under international law, emphasising the judiciary's broader responsibility to safeguard children's welfare in cases of alleged domestic abuse and the impacts of parental mental health

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