CA-2025-001951 - [2025] EWCA Civ 1426

The proceedings concern A (13) and B (11). They and their parents are United States citizens and all members of the family lived in Pennsylvania until 2022. The parents separated when the children were very young and divorce proceedings ensued. An order for joint legal custody was made in 2016, with the mother to have physical custody and the father to have substantial contact. Contact was not without difficulty, but it continued until June 2021, when the mother stopped it, alleging that the children had been sexually abused by the father. They have not seen their father since then.

On 6 July 2022, the parents’ dispute came before the Court of Common Pleas in Delaware County, Pennsylvania, where it was heard by the Honorable Judge Nusrat J. Love (later Rashid). She concluded that the mother had not proved her allegations against the father and she reinstated the earlier contact arrangements.

On 4 August 2022, the mother removed the children from the United States to England. The family had no prior connection with this country, nor any right of residence. The mother claimed asylum for herself and the children.

On 19 October 2022, the Court of Common Pleas awarded sole legal and physical custody of the children to the father.

The father did not know that the children were in England until January 2023. In March 2023, he brought proceedings for their summary return under the 1980 Hague Convention.

In February 2023, the Home Secretary refused the asylum claims. On 25 March 2024, the First-tier Tribunal dismissed the mother’s appeal from that decision, having considered and rejected the sexual abuse allegations. The mother’s attempts to make further applications to that tribunal or to appeal to the Upper Tribunal have been unsuccessful. She and the children live in precarious circumstances and are liable to deportation at any time.

The mother defended the child abduction proceedings on the basis that the children’s return to their home state would place them in an intolerable situation under Article 13b of the Hague Convention, and that the children objected to returning.

The proceedings were heard in June 2024 by the President of the Family Division, sitting with Upper Tribunal Judge Mandalia, at a hearing lasting three days. In a substantial reserved judgment handed down on 28 June 2024, they rejected the mother’s defences and determined that the children should return to the United States on terms to be agreed between the parents or ordered by the court: [2024] UKHC 1626 (Fam). They found that the children’s repatriation and subsequent placement in foster care for a short period following the likely arrest and imprisonment of the mother on arrival would be traumatic, stressful and upsetting, but that it nevertheless fell well short of placing the children in an intolerable situation. In all the circumstances, and despite their very clear objections, the children must be returned to the United States.

The mother’s application for permission to appeal was refused by Moylan LJ on 22 August 2024.

The return order was perfected by the President on 5 November 2024. He refused an application by the older child to be separately represented from his Children’s Guardian, and he provided for the children to return forthwith to the United States in accordance with detailed provisions contained in the order. Centrally, the return order was not to be implemented until the American custody order of October 2022 had been modified so that, if the children could not remain with their mother on arrival, they were not to be placed in their father’s care pending the first hearing in the Court of Common Pleas. Instead they were to be placed in foster care in the absence of a suitable and available third party.

On 11 November 2024, the parents signed an agreement that provided that the father agreed to temporary physical custody going to the mother and to his right to physical custody being temporarily discharged until a first emergency hearing. The father agreed that the children were not to be placed with him in the meantime, and that if the mother was arrested on arrival, they would be placed in foster care or with a third party.

The father duly applied to the Court of Common Pleas to modify the order in accordance with the parties’ agreement. On 8 May 2025, after hearing submissions from counsel, Judge Rashid denied the father’s motion and upheld the October 2022 order, only adding that, pending a first emergency hearing, the father should allow the children to be temporarily cared for by a known family member if he determined that the children were experiencing extreme emotional or mental health issues while in his custody. At that time, no family member had been proposed by either parent.

This led to further developments in the English proceedings. On 19 May 2025, in the light of Judge Rashid’s refusal to approve the proposed consent order, the father sought an urgent hearing in the High Court. On 10 June 2025, the mother applied to set aside the return order. On 18 June 2025, Ms Nina Hansen applied on behalf of both children for them to be separately represented from their Children’s Guardian.

At a hearing on 25 June 2025, the President granted the children’s application. He discharged the Children’s Guardian and appointed Ms Hansen as their Solicitor-Guardian. In respect of the mother’s application to set aside the return order, he decided to allow a reconsideration of the return order and gave directions for further evidence. This process followed stages 1 and 2 of the procedure provided for in Re B (A Child) (Abduction: Article 13(b)) [2020] EWCA Civ 1057; [2021] 1 WLR 517; [2021] 1 All ER 1138; [2021] 1 FLR 721 (‘Re B’) (see [23] below).

At a further hearing on 21 and 22 July 2025, the President considered the applications to set aside the return order and also an oral application by the father to vary the return order so as to permit the children to be placed in the care of their paternal grandmother on return. After hearing submissions, the President ruled that he was not going to set aside the order. He adjourned overnight for the father to consider how he wished the order to be varied. On 22 July 2025, after further submissions, he made the order under appeal. Having confirmed the continuation of the undertakings set out in the order of 5 November 2024, he varied the return order to provide that the children should remain in the temporary physical custody of the mother provided she was not detained on arrival, and otherwise for them to be placed in the care of the grandmother pending the emergency hearing. Having done so, he repeated the declaratory order for the children’s summary return and provided that it should occur no later than 12 August 2025, that being the first return date that had been set by the court.

The children’s application for permission to appeal was granted by Moylan LJ on 14 August 2025. We heard the appeal on 22 October 2025.