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

In Re W (Abduction: Setting Aside Return Order) [2018] EWCA Civ 1904; [2018] 4 W.L.R. 149; [2019] 1 FLR 400 (‘Re W’), this court (Moylan LJ, with whom Holroyde and Peter Jackson LJJ agreed) held that the High Court had an inherent power to set aside a return order under the Hague Convention where there had been a fundamental change of circumstances which undermined the basis on which the original order was made.

Rule 12.52A of the Family Procedure Rules 2010, in effect from 6 April 2020, incorporated this power within the rules of court:

“Application to set aside a return order under the 1980 Hague Convention

12.52A

(1)

In this rule—

“return order” means an order for the return or non-return of a child made under the 1980 Hague Convention and includes a consent order;

“set aside” means to set aside a return order pursuant to section 17(2) of the Senior Courts Act 1981 and this rule.

(2)

A party may apply under this rule to set aside a return order where no error of the court is alleged.

(3)

An application under this rule must be made within the proceedings in which the return order was made.

(4)

An application under this rule must be made in accordance with the Part 18 procedure, subject to the modifications contained in this rule.

(5)

Where the court decides to set aside a return order, it shall give directions for a rehearing or make such other orders as may be appropriate to dispose of the application.

(6)

This rule is without prejudice to any power the High Court has to vary, revoke, discharge or set aside other orders, declarations or judgments which are not specified in this rule and where no error of the court is alleged.”

In Re B this court (Moylan LJ, with whom Peter Jackson and Carr LJJ agreed) confirmed the test that must be applied to an application to set aside a return order and identified these procedural stages:

“89.

I suggest [this] process… should be applied when the court is dealing with an application to set aside 1980 Convention orders:

(a)

the court will first decide whether to permit any reconsideration;

(b)

if it does, it will decide the extent of any further evidence;

(c)

the court will next decide whether to set aside the existing order;

(d)

if the order is set aside, the court will redetermine the substantive application.

…

91.

I would further emphasise that, because of the high threshold, the number of cases which merit any application to set aside are likely to be few in number. The court will clearly be astute to prevent what, in essence, are attempts to re-argue a case which has already been determined or attempts to frustrate the court’s previous determination by taking steps designed to support or create an alleged change of circumstances.”

The approach taken in Re W and Re B is again reflected in Practice Direction 12F, which provides that “the court might set aside its decision where there has been fraud, material non-disclosure or mistake… or where there has been a fundamental change in circumstances which undermines the basis on which the order was made.”