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

We can state our decision and reasons quite shortly. We remind ourselves that the proceedings from which this appeal arises concern the proper operation of the Hague Convention in the interests of children, and not the interests of parents. We share the concern expressed by the judges in both jurisdictions about the extreme delays since the children were abducted.

The starting point is that there is no issue about the correctness of the original return order that was decided upon in July 2024 and finalised in November 2024. These children should be returned to their native country as soon as possible for their futures to be decided in accordance with its laws and processes. We agree with the President that neither the unavailability of foster care nor the passage of time comes close to establishing a fundamental change of circumstances.

At the same time there is an obligation on a court exercising Hague Convention powers to ensure that children are not placed in an intolerable situation on return. In the present case, the situation created by the mother led the President and UTJ Mandalia to conclude that a return into the immediate care of the father would be intolerable for them. As a result, the court took pains to devise protective measures to ensure that this could not happen until an urgent hearing before the Court of Common Pleas, which would then have the opportunity to assess the position as it actually stood. The intention behind the return order was that the children should remain with their mother in the unlikely event that she remained at liberty, and that they should otherwise be placed with a suitable third party or in foster care. Placement with the father in this period was not to be countenanced. That conclusion was based on a strong body of independent evidence about the children’s actual situation. The central protective measure on which the return order was based was therefore that the custody order in the father’s favour would be suspended or modified, allowing for the children to remain with their mother or, if she was unavailable, receive alternative care: see [49] of the original judgment and paragraph 19 of the order of 5 November 2024.

The Court of Common Pleas, for reasons that we respectfully appreciate, was unable and/or unwilling to endorse a foster placement. However, in contrast to the English court, it was also unwilling to allow the children to stay with their mother on return even if she was available to them. It further saw no reason why the children should not be placed immediately with their father, and provided for this in paragraph 3b of its order. The children can only be placed with a known family member under paragraph 3d thereafter, and only if the father then determines that they are experiencing extreme emotional or mental health issues while in his custody.

From the point of view of the English court and the parties, the US Order was unexpected. It undoubtedly represented a change in circumstances. The question is whether the change was of a fundamental kind that undermined the basis on which the original return order was made. The President reasoned that it was not because, referring to the original return order at paragraph 8(b) and the November parental agreement, the children would not go to the father but would be in some form of temporary care with another person. Accordingly, he found that the change had been to the detail of the return arrangement but that the basic structure remained the same. In any event, it was only to be a holding mechanism pending the emergency hearing.

It has not been suggested to us that the protective arrangements that the English court put in place were unimportant when it came to order that the children should be returned in the face of their strong objections. It need hardly be said that they are not responsible for their situation, and however much they may have been influenced by their mother, these children, now aged 11 and 13, have extremely strong feelings about their father. Those feelings do not have to be soundly based to be authentic. The return itself will be extremely difficult for them, particularly if their mother is arrested. 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, whatever happened and for however short a period. On any view of the US Order, it does not provide them with that assurance. They will go first to their father and he will, as Judge Rashid put it, “call the shots”. That is not a legal nicety, but a matter of substance.

Seen in this way, we consider that the President fell into error by focusing on the arrangements that had been made within the English proceedings, when it is the regime provided by the US Order that will govern the arrangements after the children’s arrival in America.

Close attention to the US Order shows that the programmes intended by the two courts do not differ in detail alone. The original return order provided that the children should optimally remain with the mother and should in no circumstances go to their father. Conversely, the US Order directs that the children shall go to the father and shall in no circumstances remain with their mother, even if she is free to remain with them upon return. We cannot envisage the original return order having been made if this outcome had been foreseeable to the English court. At a minimum, it would in our view have been bound to ask for further clarification of the effectiveness of its intended protective measures. As matters stand, the asymmetry between the US Order and the revised return order amounts to a conflict that leaves the children unprotected. The father’s promise to the English court that he will leave the children in their mother’s care (if she is available) is unacceptable to the court under whose jurisdiction the children will be placed immediately upon their return. Equally, his promise to surrender them to their grandmother so that they do not come into his care is at odds with the regime endorsed by that court. It is difficult to see how these matters could be overcome by the father under the US Order as it stands, regardless of whether he could be relied upon to act in good faith.

There is of course an outcome that may well be acceptable to both courts and that would resolve the difficulty that now arises. That is for the children to be placed with their paternal grandmother in America, if their mother is arrested on arrival and unavailable. Despite its inquiry, the US court was not offered this option, which has the approval of the English court. We regard the recent reservations expressed about the grandmother by the mother and children as counting for little in a situation of this gravity.

However, the fact that a regime might have been put in place by the Court of Common Pleas for the children to be placed with their grandmother does not mean that such a regime has in fact been put in place. On our analysis it has not. It also remains to consider the position if the mother is not arrested on arrival and is available to care for the children.

We have well in mind the high bar for reopening a return order, but we nonetheless conclude that the discrepancies in the legal and practical regimes that have emerged since the original return order was made can only be seen as a fundamental and undermining change in circumstances. We allow the children’s appeal from the refusal of the applications to set aside the return order.

How, then, should this court dispose of the appeal? We have concluded that we should adjourn it for a fixed period to give a further opportunity for the Court of Common Pleas to consider the position in the light of the information that was not before it in May 2025, namely that a suitable family member other than the father is now available as a short term carer. It may be possible for the protective measures identified as necessary by the English court to be effected in Pennsylvania. A further hearing would also allow the Court of Common Pleas to consider the position of the children if their mother is not arrested but has had their travel documents removed from her.

It will of course be entirely a matter for the Court of Common Pleas as to whether it chooses to make any further order in the light of the new information, but we consider it to be in the interests of the children that such an opportunity should be afforded before we make final orders disposing of all aspects of this appeal.

This unusual course is justified because the courts in England and America have both reached the firm conclusion that these children should return to America, yet the children have now been in England for over three years. 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. It is in the children’s interests that the decision-makers in each of the national jurisdictions should be fully aware of the up-to-date position in the other jurisdiction.

We shall therefore: