Anonymised Summary of Legal Opinion

Factual and Procedural Background

This appeal arises from an order of the President of the Family Division dated 22 July 2025 refusing applications to set aside a return order made on 5 November 2024 under the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"). The central question for the appellate court was whether the trial judge was entitled to conclude that there had not been a fundamental change of circumstances undermining the basis on which the return order was made.

The factual matrix as described in the opinion (anonymised) is as follows:

• Child 1 (age 13) and Child 2 (age 11) and their parents are citizens of Country A. The family lived in The State until 2022. The parents separated and a sole or joint custody regime existed from 2016 with the mother having primary physical custody and the father substantial contact.
• Contact between the children and the father ceased in mid-2021 after allegations by the mother that the father had sexually abused the children. Those allegations were investigated and later rejected by a court in The County and by administrative tribunals and other bodies.
• On 4 August 2022 the mother removed the children from Country A to Country B without lawful leave to remain. The mother sought asylum in Country B; that asylum claim and later appeals were refused and exhausted by March 2024, leaving the mother and children living in precarious circumstances and liable to deportation.
• The father learned that the children were in Country B in January 2023 and applied in March 2023 for their summary return to Country A under the Hague Convention.
• In June 2024, a hearing in Country B (before the Judge President with Judge Mandalia) concluded that the mother's defences under Article 13(b) and the children’s objections failed and ordered their return to Country A, on terms to be agreed or determined: [2024] UKHC 1626 (Fam).
• The return order was perfected on 5 November 2024. It included detailed implementation provisions and parental undertakings intended to prevent the children being placed in the father's care immediately on return; the default short-term plan was foster care or placement with a suitable third party pending an urgent hearing in The County Court in Country A.
• The parents executed a consent agreement on 11 November 2024 in which the father agreed temporarily to discharge his immediate physical custody rights and not to require the children to be placed with him pending an emergency hearing, and the father agreed the children should be placed in foster care or with a third party if the mother were detained on arrival.
• The father applied to the County Court in The County (Country A) to modify the County Court’s earlier custody order to reflect the November 2024 agreement. On 8 May 2025 Judge Rashid (sitting in The County Court) declined to approve the proposed modification and instead made an order providing that the father would assume temporary sole custody on the children's arrival, but that he could permit temporary care by a known family member if he determined the children were experiencing extreme emotional or mental health issues in his custody.
• Following that outcome, the mother and the children applied in Country B to set aside the return order (applications made in June 2025). The children also applied for separate legal representation and the court granted separate representation, discharged the previous Children's Guardian and appointed Attorney Hansen as Solicitor-Guardian for the children.
• The Judge President reconsidered the return order (following stages 1 and 2 of the procedure set out in Re B) and, after a further hearing on 21–22 July 2025, refused to set it aside on 22 July 2025 but varied the implementation arrangements so that the children would remain with the mother on arrival if she were not detained and otherwise be placed with the paternal grandmother pending the emergency hearing. That order fixed a return date no later than 12 August 2025.
• Permission to appeal the refusal to set aside the return order was later granted and the appeal was heard by the appellate court on 22 October 2025.

Legal Issues Presented

1. Whether the trial judge (the President of the Family Division) was entitled to conclude that there had not been a fundamental change of circumstances undermining the basis on which the original return order under the Hague Convention was made.
2. Whether the protective measures envisaged by the English return order remained sufficiently effective after intervening developments in Country A (including the County Court order of 8 May 2025) such that the Article 13(b) analysis and the decision to order return remained justified.
3. Whether and in what circumstances a court exercising powers under the Hague Convention should set aside an earlier return order on the ground of a fundamental change of circumstances.

Arguments of the Parties

Appellants' Arguments (mother and children)

• The President and Judge Mandalia had accepted that it would be intolerable for the children to be placed into the father's care on return; that was central to the basis for ordering return only on terms that excluded immediate placement with the father.
• The County Court order of 8 May 2025 (Country A) placed the children into the father's custody on arrival (subject only to his discretion to allow temporary care by a family member if he judged the children to be in an extreme state). That change put it entirely in the father's hands where the children would be placed and therefore undermined the central protective measure on which the English return order was based.
• The trial judge did not properly grapple with the practical effect of the County Court order and the consequent ineffectiveness of the protective steps required by the English court. There was no finding that the father could reliably be expected to honour his undertakings to the English court once the County Court order came into effect.
• Accordingly, the protective measures required by Article 13(b) were now ineffective and the change was fundamental, warranting setting aside the return order.

Appellee's Arguments (father)

• The Hague Convention is a limited and focused jurisdiction; welfare determinations are for the courts of the child's home state (Country A). The power to set aside a return order is narrowly circumscribed and the threshold for reopening is high.
• Although the father accepted that the children were experiencing severe emotional difficulties and that the original return order was founded on the proposition that the children should not be placed with him on arrival, the essential structure of a temporary third-party placement pending an urgent hearing remained achievable and had not fundamentally changed.
• The County Court order contained protective features (an urgent hearing on return, the father's discretion to place the children temporarily with a known family member if there were acute mental health issues, telephone contact with the mother, restrictions on the father's contact with the mother in advance). The father reaffirmed that he would not seek to exercise physical custody before the emergency hearing and that he would comply with his undertakings.
• If the appellate court considered the matter should be reconsidered, the appropriate step would be to adjourn or to permit the County Court in Country A to consider the up-to-date position.

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate court set out its reasoning in structured steps, applying the established domestic authorities and the Hague Convention principles that govern protective measures and the setting-aside of return orders.

Key steps in the court's analysis (based on the opinion):

1. Starting point and high threshold: The court began from the premise that the original return order (June 2024 judgment and the 5 November 2024 order) was lawfully made and correct. It reiterated that the bar for setting aside such an order is high: there must be a fundamental change in circumstances which undermines the basis of the original decision (Re W; Re B).
2. The basis of the original return order: The appellate court summarised the original reasoning: the return order was made despite recognition that repatriation would be traumatic and that the mother was likely to be detained on arrival, because it was concluded that short-term placement in foster care or suitable third-party care pending an urgent hearing in the children's home state did not amount to an "intolerable situation" within Art 13(b). Crucially, the original order was founded on protective measures designed to prevent the children being placed in the father's immediate care on arrival.
3. Intervening developments in Country A: The County Court's order of 8 May 2025 (the "US Order" in the opinion) represented a materially different regime: it directed that, on arrival, the children would be placed into the father's temporary custody, with the father able to allow temporary care by a known family member only if he determined the children were experiencing extreme emotional or mental health issues. The County Court was not willing to place the children in foster care or to allow them to remain with their mother in any circumstances. The appellate court acknowledged that this development was unexpected and constituted a change in circumstances.
4. Assessment of whether the change was "fundamental": The court evaluated whether the change was simply a change of detail or whether it struck at the foundational protective assurance on which the English return order had been made. The Judge President below had concluded it was not fundamental because the basic structure (placement with someone other than the father pending an urgent hearing) remained, albeit in different detail and potentially by a different mechanism (grandmother rather than foster care). The appellate court carefully reviewed the County Court order and concluded that it did not simply differ in detail: it placed the children first in the father's custody and thereby left the protective promise made by the English court (that they would not be placed with the father on arrival) without practical effect.
5. Substance over form: The appellate court emphasised substance: the operative regime that will govern the children after arrival is the County Court order in Country A, not the English court's expectations. The County Court order made clear that the children would go to the father first, and the father's discretion thereafter would determine whether they could be passed to a family member. That outcome conflicted with the protective assurance that the English court treated as central to its decision to order return.
6. Effect on protective measures and Article 13(b) analysis: Because the County Court's regime did not provide the assured protection against immediate placement with the father, the appellate court found that the protective measures underpinning the original return decision were rendered ineffective in practice. The court observed that the father’s undertakings to the English court could not alter the legal regime operative on return in Country A; the asymmetry created a real risk that the children would be exposed to the very situation the English court sought to avoid.
7. Conclusion on fundamental change: On that basis, and notwithstanding the high threshold for reopening, the appellate court concluded that the discrepancies between the two regimes amounted to a fundamental and undermining change of circumstances. Accordingly, the earlier refusal to set aside the return order could not stand.
8. Remedial and procedural approach: Rather than immediately making final orders, the appellate court exercised its discretion to allow an adjournment (for a specified period) to permit the County Court in Country A to reconsider the position in light of information that was not before it at the May 2025 hearing (notably, the availability of a suitable family member — the paternal grandmother — who could provide short-term care and the details of the English court's orders). The appellate court stayed the operative return directions pending that process and arranged for transmission of judgments to the relevant inter-jurisdictional judicial liaison channel to assist co-operation between the courts.

Holding and Implications

Core Holding: The appellate court allowed the Appellants' appeal from the refusal of the applications to set aside the return order on the ground that intervening developments in Country A (the County Court order of 8 May 2025) produced a fundamental and undermining change in circumstances such that the protective measures underpinning the original return order were rendered ineffective in practice.

Immediate orders and practical consequences (as stated in the judgment):

• The court set aside paragraph 11 of the Judge President's order of 22 July 2025 (the paragraph dismissing the applications to set aside the return order).
• The appeal was adjourned to be restored within a fixed period (the court directed that the appeal be restored in no more than 90 days), to give the County Court in Country A the opportunity to consider and, if thought appropriate, to make further orders in light of information not before it in May 2025 (including potential acceptance of short-term placement with the paternal grandmother).
• The court stayed the return order provisions (paragraphs 15 and 16 of the 22 July 2025 order) pending further order of the appellate court.
• The court directed transmission of its judgment and related materials to the International Office for onward transmission to the Hague Network Judge in Country A to facilitate judicial co-operation.
• The parties were invited to agree further interim directions to give effect to the decision (including practical arrangements while the case remains adjourned).

Broader implications (limited and factual):

• The decision underscores that protective measures relied upon under Article 13(b) must be effective in the state to which return is ordered; a change in the legal regime in the receiving state that removes or neutralises those protective measures can amount to a fundamental change warranting reconsideration of a return order.
• The ruling does not alter the general proposition that welfare determinations in respect of the child's future arrangements remain primarily a matter for the child's home state courts; instead it recognises that, where the protective measures that made return lawful are undermined by events in the home state, the limited power to set aside may properly be exercised.
• No wider legal precedent was created beyond the application of existing authorities (Re E, Re T, Re W, Re B and the procedural rules) to the particular facts; the court emphasised the high threshold for reopening and took a narrowly focussed, pragmatic approach by adjourning and seeking inter-court cooperation rather than making final welfare determinations.

This summary is strictly confined to the information contained in the provided opinion and has been fully anonymised in accordance with the instruction provided.