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HG (Abduction: Application To Set Aside Return Order)
Smart Summary
Factual and Procedural Background
This appeal concerned a Hague Convention child abduction case in which the Court of Appeal was asked to review a judge’s refusal to set aside or stay an earlier return order requiring the Child to be returned to the foreign State. [Para 24][Para 56] The Mother and Father married after meeting in 2023, lived together in the foreign State, and the Child was born there in August 2024. [Para 26][Para 28] The family moved to Texas in February 2025 after the Father obtained employment there, but the Mother later took the Child to this jurisdiction on 15 March 2025 and said she did not wish to return. [Para 31][Para 32] The Father then applied for the Child’s return, asserting wrongful retention, while the Mother raised objections based on consent, habitual residence, Article 13(a), and Article 13(b). [Para 37][Para 43] The first-instance judge rejected all defences, ordered summary return, and later refused to set aside or stay that order after new medical evidence was produced said to show deterioration in the Mother’s health. [Para 45][Para 56][Para 61][Para 80]
Legal Issues Presented
- Whether the later medical evidence showed a fundamental change of circumstances sufficient to justify setting aside the return order. [Para 61][Para 80][Para 109][Para 110]
- Whether the return order should be stayed until after the birth of the second child. [Para 61][Para 80][Para 133][Para 140]
- Whether the appellate court should admit and consider the fresh medical evidence. [Para 91]
Arguments of the Parties
Appellant's Arguments
- The Mother argued that two treating clinicians had advised that air travel was unsafe and would pose risks to her and the unborn child, so compliance with the return order could not safely be required. [Para 87][Para 89]
- She further argued that the judge failed to analyse the evidence properly and failed to take adequate account of the deterioration in her condition since the earlier hearing. [Para 88][Para 89]
- She asked the Court of Appeal either to set aside the return order or, alternatively, to stay it until after the baby was born. [Para 90]
Respondent's Arguments
- The Father submitted that the Mother was merely challenging the weight given to the evidence and had not shown a fundamental change of circumstances. [Para 127]
- He relied on the fact that the earlier specialist referral had not been mentioned at the final hearing and that there had been no attempt to cross-examine the court-appointed psychiatrist. [Para 127]
- He also argued that a stay until after birth would lead to further litigation and could create immigration difficulties for the Mother and the newborn child. [Para 128][Para 130]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re HG (A Child) (Abduction: Consent, Acquiescence, Art 13b) [2026] EWHC 1385 (Fam) |
The earlier judgment giving reasons for the original return order and rejecting the Article 13(b) defence. [Para 26][Para 44] |
This was the decision under challenge; the Court of Appeal treated it as the foundation for the later set-aside and stay applications. [Para 26][Para 56] |
| ST v QR [2022] EWHC 2133 (Fam) |
Cited by the judge as a reported decision addressing the relevant legal principles on setting aside return orders. [Para 72] |
The appellate judgment records only that the judge referred to it; no distinct principle from it was separately analysed on appeal. [Para 72] |
| Re W (Abduction: Setting Aside Return Order) [2018] EWCA Civ 1904 [2019] 1 FLR 400 |
The High Court has an inherent power to set aside a return order where there has been a fundamental change of circumstances undermining the original basis for the order. [Para 109][Para 110] |
The Court accepted this as the governing test for the Mother’s application to set aside the return order. [Para 109][Para 110] |
| Re B (A Child) (Abduction: Article 13(B)) [2020] EWCA Civ 1057 [2021] 1 FLR 721 |
The four-stage process for dealing with applications to set aside Convention return orders, together with the warning that the threshold is high and the court should resist attempts to re-argue concluded cases. [Para 111][Para 121] |
The Court applied that framework, treated the matter as being at stage (c), and remitted the set-aside question for reconsideration after the baby’s birth. [Para 122][Para 138][Para 139] |
| Metropolitan Bank v Pooley (1884-1885) LR 10 App Cas 210 |
Authority confirming the inherent power to stay proceedings. [Para 123][Para 125] |
The Court relied on that power when extending the stay of the return order pending rehearing. [Para 125][Para 140] |
| Volpi v Volpi [2022] EWCA Civ 464 |
The appellate court should give substantial weight to a trial judge’s evaluative findings and will only interfere on a high threshold. [Para 127] |
The Father invoked this to defend the judge’s refusal to set aside or stay the order. [Para 127] |
| Ladd v Marshall [1954] 1 WLR 1489 |
The familiar approach to fresh evidence, though the Court here said that, without detailed analysis, the interests of justice required consideration of the material. [Para 91] |
The Court admitted and considered the fresh medical evidence de bene esse because it was plainly relevant to the appeal. [Para 91] |
Court's Reasoning and Analysis
The Court first accepted that the governing law was the high-threshold test in Re W and the staged approach in Re B. [Para 109][Para 110][Para 111][Para 121] It then decided that the fresh medical material should be considered because it went directly to the Mother’s current condition and was relevant to the appeal. [Para 91]
On the facts, the Court held that the return order could not realistically be implemented before the baby’s birth because the Mother could not safely travel by air at that stage. [Para 131][Para 133] The Court considered the alternative of sending the Child to the foreign State with the Father, but regarded that as unrealistic because the Child had not seen the Father for months, had never been separated from the Mother, and was still being breastfed; that change would itself be fundamental and might expose the Child to psychological harm. [Para 134]
For that reason, the Court concluded that the only realistic course was to stay the return order until after the baby was born. [Para 135] It held that this was already apparent at the time of the stay application, given the two medical reports advising against air travel, even if the judge remained sceptical about how the reports had been generated. [Para 135]
As to setting aside the order, the Court said the position was temporary and unstable: the Mother’s pregnancy-related health problems might improve after birth, but her circumstances would then change again, so it could not yet be said whether there would be a sufficiently fundamental change to justify setting aside the original order. [Para 136][Para 138] The proper course was therefore to rehear the set-aside application before another Family Division judge no earlier than six weeks after the baby’s birth. [Para 138][Para 139]
Holding and Implications
APPEAL ALLOWED; STAY EXTENDED; SET-ASIDE APPLICATION REMITTED. [Para 135][Para 139][Para 140] The Court stayed the return order until the application to set aside could be reheard, and directed that rehearing to take place before another Family Division judge on the first open date six weeks after the birth of the baby. [Para 139][Para 140] The decision did not announce any new principle; it applied established Hague Convention case law to an unusually time-sensitive medical and procedural situation. [Para 109][Para 110][Para 111][Para 121]
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