Protective Measures Must Be Effective in the Requesting State: Foreign Order Undermining Safeguards is a Fundamental Change Justifying Reconsideration of a Hague Return

Introduction

This commentary examines the Court of Appeal’s decision in R (Children: Setting Aside Hague Return Order) [2025] EWCA Civ 1426. The case addresses a pivotal question in international child abduction law under the 1980 Hague Convention: when, and on what basis, can the English court set aside or reconsider a return order in light of subsequent developments in the requesting state that render previously crafted protective measures ineffective?

The proceedings concern two US citizen children, A (13) and B (11), removed by their mother from Pennsylvania to England in August 2022 following unproven allegations of sexual abuse against the father. After the President of the Family Division ordered their summary return in June 2024—on the express basis that protective measures would ensure the children did not enter the father’s care on arrival—the Court of Common Pleas in Pennsylvania later declined to modify its existing custody order and instead directed that the father should have immediate temporary sole physical custody on the children’s return.

The central issue on appeal was whether this American order constituted a fundamental change of circumstances undermining the basis of the English return order, thereby justifying setting aside or reconsideration under the inherent jurisdiction as reflected in Family Procedure Rules r.12.52A and the framework in Re W and Re B.

Summary of the Judgment

The Court of Appeal allowed the children’s appeal from the President’s refusal to set aside the return order, holding that:

• The subsequent US order, which required the children to enter the father’s immediate custody upon arrival, directly conflicted with the core protective premise underpinning the English return order—namely, that the children would not be placed with the father before an urgent US court hearing (paras 48–53).
• This conflict was not a mere change in the “detail” of implementation; it was a fundamental and undermining change in circumstances (para 56) because the effectiveness of the protective measures in the requesting state is essential to the assessment under Article 13(b) (paras 18–20, 47–53).
• The Court adopted an unusual remedial course: it stayed the return, set aside the dismissal of the set-aside applications, and adjourned the appeal for up to 90 days to afford the US court a further opportunity to consider up-to-date information (notably the availability of the paternal grandmother as a caregiver) and to align protective measures (paras 57–60).

Background and Procedural Timeline

• 2016: Pennsylvania order for joint legal custody; mother had physical custody; father had substantial contact.
• June 2021: Mother unilaterally stops contact citing sexual abuse allegations.
• 6 July 2022: Judge Love (later Judge Rashid) rejects those allegations; reinstates contact.
• 4 August 2022: Mother removes A and B to England; asylum claims follow; family has no prior UK connection.
• 19 Oct 2022: Father granted sole legal and physical custody in Pennsylvania.
• March 2023: Father commences Hague return proceedings in England. Asylum claims later refused; FtT dismisses appeal (March 2024).
• June 2024: President and UTJ Mandalia order return, finding Article 13(b) not made out; child objections weighed but return directed, predicated on protective measures preventing immediate placement with father (paras 49–55, 63; order later perfected on 5 Nov 2024).
• 11 Nov 2024: Parents sign agreement to suspend father’s physical custody on arrival and use foster care/third party pending urgent hearing.
• 8 May 2025: Pennsylvania court refuses to approve consent order; orders immediate temporary sole physical custody to father on arrival (with limited discretion to use a family member later) (paras 31–34).
• June–July 2025: Mother and children apply in England to set aside return order; President declines, varying implementation to prefer the paternal grandmother if mother detained (paras 36–39).
• Permission to appeal granted; Court of Appeal holds the mismatch with the US order is a fundamental change; appeal adjourned to seek transatlantic alignment (paras 46–60).

Analysis

Precedents and Instruments Cited

• Re E (Children) (International Abduction) [2011] UKSC 27; [2012] 1 AC 144: The Supreme Court held that Article 13(b) is forward-looking, focused on the situation upon return, and crucially, on the protective measures that can be put in place in the requesting state to avert an intolerable situation (paras 35–36). This case anchors the duty of the returning court to ensure effectiveness of safeguards in the state of habitual residence.
• Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415: Cobb J emphasized that “protective measures need to be effective” (para 50). The present case operationalizes that maxim by testing effectiveness against the juridical reality in the requesting state; undertakings or plans that cannot or will not be honoured in that state are not “protective.”
• Re W (Abduction: Setting Aside Return Order) [2018] EWCA Civ 1904: Established the High Court’s inherent power to set aside a Hague return order for a fundamental change of circumstances undermining the order’s basis.
• Re B (A Child) (Abduction: Article 13(b)) [2020] EWCA Civ 1057: Confirmed the test and a four-stage process for set-aside applications: (a) permit reconsideration; (b) scope further evidence; (c) decide whether to set aside; (d) if set aside, redetermine the application (paras 89–91). The case also warns of the high threshold and the need to guard against re-litigation.
• FPR 2010 r.12.52A: Codifies the set-aside power for Hague return orders when “no error of the court is alleged,” reflecting Re W.
• Practice Direction 12F: The court may set aside its decision for fraud, material non-disclosure, mistake, or a fundamental change undermining the order’s basis.
• Good Practice Guide (HCCH Permanent Bureau, Oct 2020): Supports the approach that protective measures must be real and workable across borders; judicial liaison is encouraged.

Legal Reasoning

The Court of Appeal’s reasoning turns on the structural centrality—and cross-border effectiveness—of protective measures in the Article 13(b) analysis and the discretionary decision to return notwithstanding child objections.

1. What was the “basis” of the return order?
   • In June/November 2024, the English court ordered the children’s return on the express premise that they would not be placed with the father upon arrival pending an urgent US hearing. The children were either to remain with the mother if not detained, or be placed in foster care/with a suitable third party (paras 49–55; order of 5 Nov 2024, paras 8–12, 18–21).
   • That premise responded to a specific, evidence-based risk: the children’s pronounced distress and objections, such that immediate placement with the father would be intolerable in the narrow Hague sense, even though the allegations against him were not proven.
2. What changed?
   • The Pennsylvania court’s order of 8 May 2025 mandated immediate temporary sole physical custody to the father upon arrival (para 34, order 3b), with a limited discretion to permit a known family member to care for the children if, in the father’s judgment, they were experiencing extreme emotional or mental health issues while in his custody (para 34, order 3d).
   • It also made clear that the court would not endorse foster care and would not allow the mother to retain the children—even if she was not detained (paras 31–33).
3. Why was this a fundamental change?
   • The English protective platform did not merely specify a preference for non-father placement; it provided a guarantee that the children would not go to the father before the US court could rapidly review the situation (paras 48–51).
   • The US order’s mandate that the children go first to the father reverses that platform: the father “calls the shots” from the outset (para 51). That is not a peripheral detail; it removes the core protection that underpinned the decision to order return.
   • Undertakings by the father to the English court cannot cure the defect where they are inconsistent with the binding US order and therefore are not effective in the requesting state (paras 52–53). Re T’s insistence on effective protective measures is decisive: measures must secure the child’s safety in the jurisdiction to which they are returned.
4. Why the President’s analysis could not stand
   • The President characterized the US order as a change of “detail” because a third-party (the grandmother) could still be used. The Court of Appeal held this was the wrong focus: the controlling legal regime upon return was the US order, which did not assure third-party placement at the point of arrival and barred the mother’s care (paras 50–53).
   • The English return order would not, in the Court of Appeal’s view, have been made on the basis that the children must first enter the father’s custody; at a minimum, the court would have sought further clarity before ordering return (para 53).
5. Remedy: stay, adjournment, and judicial liaison
   • Given the shared judicial aim that these children should return to the US, the Court adjourned for up to 90 days to allow the US court to consider updated information—including the paternal grandmother’s availability—and potentially craft an arrangement acceptable to both courts (paras 57–60).
   • The Court directed transmission of judgments to the UK and US Hague Network Judges via the International Family Justice Office, encouraging judicial cooperation and mutual understanding (para 60(4)).

Impact and Significance

This judgment meaningfully develops the law on setting aside Hague return orders in three respects:

1. Effectiveness of protective measures is jurisdiction-sensitive, not promise-sensitive.
   • Protective measures must be demonstrably enforceable and operative in the requesting state. Undertakings in England that cannot be honoured under the requesting state’s court order will not suffice.
   • This strengthens and operationalizes Re E and Re T: “protective” means “effective where it matters”—in the jurisdiction of habitual residence.
2. Fundamental change test calibrated to the protective platform.
   • A subsequent foreign order that removes or contradicts the core protective assumption underpinning return is a paradigm example of a “fundamental change of circumstances” (Re W; Re B; PD12F).
   • By contrast, mere logistical changes (e.g., unavailability of foster care in principle; passage of time) remain insufficient (paras 47, 56).
3. Procedural architecture for cross-border alignment.
   • The judgment approves an “adjourn-and-stay” pathway to enable the requesting state to consider new facts and to foster reciprocity and comity through the Hague Judicial Network (para 60).
   • It gently underscores the importance of ensuring the foreign court has the full suite of English judgments and orders; an apparent gap in what the US court saw (para 30) may have shaped its approach.

Complex Concepts Simplified

• Article 13(b): “intolerable situation”
  • This defence allows the requested state to refuse return if returning would expose the child to a grave risk of harm or otherwise place them in an intolerable situation. It looks to the future situation on return, and includes consideration of any protective measures available in the requesting state (Re E).
• Protective measures
  • Arrangements that mitigate risk on return—e.g., temporary care arrangements, undertakings, mirror orders, rapid access to local courts. They are only meaningful if they can be implemented and enforced where the child is going.
• Undertakings vs. orders
  • Undertakings are promises enforceable by the English court. They do not bind a foreign court or override a foreign order. Where a foreign court issues an inconsistent order, an undertaking cannot make the arrangement “effective” in that jurisdiction.
• “Fundamental change of circumstances” (set-aside)
  • A high threshold. The change must undermine the basis on which the return order was made (Re W; Re B). Not every development qualifies; tactical or incremental changes won’t do. Here, the change went to the heart of the protective premise.
• Comity and judicial liaison
  • Comity is mutual respect between courts of different states. The Hague Convention encourages liaison between “Hague Network Judges” to facilitate compatible, effective cross-border protective solutions.

How the Court Applied the Law to the Facts

The Court carefully distinguished between two categories of change:

• Insufficient changes: unavailability of foster care as originally envisaged; the passage of time. These did not alter the essential protective platform because a third-party caregiver could, in principle, be used (paras 47, 56).
• Fundamental change: the US order’s requirement of immediate placement with the father (and refusal to permit placement with the mother even if not detained), thereby nullifying the central English assurance and making the children’s non-father placement contingent upon the father’s unilateral discretion after the event (paras 49–53). This undermined the basis for the original Article 13(b) assessment and the discretionary decision to return despite objections.

Practical Implications for Future Cases

For practitioners representing the left-behind parent

• Secure, wherever possible, a “mirror” or compatible order in the requesting state in advance of return that gives effect to the protective measures underpinning the English return order.
• Ensure the foreign court has the English court’s judgments and orders, not just party agreements. The absence of the English orders in the US bundle (para 30) may have contributed to the outcome.
• Craft undertakings that are consistent with anticipated foreign orders; undertakings that cannot be honoured abroad will not be treated as effective protective measures.
• Propose concrete, vetted third-party placements (e.g., a grandparent) with evidence of availability and suitability; place this before both courts.

For practitioners representing the taking parent and/or children

• Scrutinize whether the requested protective measures are enforceable in the requesting state; if not, a set-aside application may be viable when the foreign order post-dates the English return order and removes the core safeguards.
• Do not assume that child objections alone will prevent return; their weight is context-sensitive (para 67). But where objections inform protective measures, any later foreign order eliminating those measures may be decisive.

For judges and Central Authorities

• Reinforce early, proactive judicial liaison via Hague Network Judges to ensure mutual understanding of acceptable safeguards and local legal powers (paras 18–20, 60).
• When a return depends on foreign safeguards, prefer explicit, pre-return foreign orders over soft assurances; define contingencies (e.g., if the taking parent is detained).
• Where gaps emerge after a return order is made, consider an adjourn-and-stay model to permit the requesting state to recalibrate orders in light of new information, minimizing delay but preserving child safety.

Key Passages from the Judgment

• “Protective measures need to be what they say they are, namely, protective. To be protective, they need to be effective.” (Re T, endorsed at para 20)
• “The core protection that was promised to them by the original return order was the assurance that they would not be placed with their father on arrival… On any view of the US Order, it does not provide them with that assurance.” (para 51)
• “We… conclude that the discrepancies in the legal and practical regimes… can only be seen as a fundamental and undermining change in circumstances.” (para 56)
• “This unusual course is justified… Having had the opportunity to study the proceedings in both jurisdictions, it is our respectful and considered view that the present difficulties might yet be overcome if each court has a fuller understanding of the other’s perspective.” (paras 59–60)

What Remains to Be Decided

The Court of Appeal adjourned for up to 90 days and stayed the return order. The US court may now:

• Reconsider interim arrangements in light of the paternal grandmother’s availability and the English protective platform;
• Address the scenario where the mother is not arrested on arrival, especially in relation to travel documents and flight risk;
• Make an order that assures third-party care at the point of arrival, aligning with the English court’s basis for return.

If alignment is achieved, the English appeal can be disposed of and the return implemented. If not, the English court will need to determine the consequences for the return order in light of the now-established fundamental change.

Conclusion

R (Children) [2025] EWCA Civ 1426 crystallizes a critical proposition in Hague Convention jurisprudence: protective measures that justify a return must be effective in the requesting state. Where a subsequent foreign order removes the central safeguard that underpinned the English decision to return, that is a fundamental change of circumstances warranting reconsideration or setting aside of the return order.

The Court of Appeal’s measured remedy—staying the return and adjourning to enable the requesting court to revisit interim care in light of new facts, coupled with formal judicial liaison—models a practical, comity-respecting pathway to reconcile child safety with the Convention’s objectives. The decision provides clear guidance for future cases: promises and undertakings are not enough if they cannot be implemented under the law and orders of the state to which the child is to be returned. Protective measures must be real, not notional; enforceable, not aspirational.

Key Takeaways

• Protective measures underpinning Article 13(b) decisions must be demonstrably effective in the requesting state; undertakings inconsistent with foreign orders do not suffice.
• A foreign order that contradicts the core protective premise of a return order constitutes a fundamental change of circumstances under Re W/Re B and FPR r.12.52A.
• Adjournment and stays can be used to facilitate alignment between jurisdictions, with Hague Network judicial liaison playing a pivotal role.
• Mere logistical changes or delay rarely meet the high threshold for setting aside a return order; the change must go to the basis of the original decision.