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

The father duly applied to the Court of Common Pleas to modify the October 2022 sole custody order to reflect the parties’ November 2024 agreement. The matter came before Judge Rashid on 8 May 2025. We have seen the bundle of documents that were available to her, and a transcript of the hearing. The documents included the substantial English judgment of June 2024, and the parties’ agreement of 11 November 2024, but not, it appears, copies of the English court’s orders of 28 June or 5 November 2024. If that is so, it may not have been apparent to that court that the parties were acting in accordance with a considered court order, and not merely a personal agreement. The transcript contains much reference to the agreement, but none to the judgment or orders of the English court.

In addition to the father’s motion, Judge Rashid was faced with a procedural application by the mother that is of no direct relevance to this appeal, but was designed to cause delay. The father was present in court. In the course of submissions by his counsel, Judge Rashid made it clear that she doubted her power to place the children in foster care and that, even if she had such a power, she would not exercise it. She saw no reason why the children should not go to their father pending a hearing. She asked whether there were family members or other adults who could look after the children temporarily, but no one was suggested. She noted that she was not obliged to endorse the agreement reached by the parties in the UK. At that point, counsel for the mother stated that the mother was no longer in agreement with the father’s motion.

Judge Rashid’s thinking appears from these passages:

“I think that I can put an order in place that says, if and when she lands, the children go into his immediate sole physical custody.

Now, if [father] wants to waive his right to exercise his sole physical custody under the current temporary order and say, no, I want them to go with [mother]’s family member or with my family member, then he can do that. But there is absolutely no reason why I’m going to order that the children go to CYS.”

And later:

“If there is no third party, and by third party I don't mean CYS, I mean a family member, that the parties can agree to, then I’m going to order that if the children are returned to the United States, father shall take immediate temporary sole physical custody of the children, which is what he has right now.”

Addressing mother’s counsel:

“Now what is that going to do to your client? Probably not make her very happy and probably, unfortunately, [father], not make her want to come back here. But there is nothing else that I believe under Pennsylvania state law this Court can do.”

Judge Rashid then made it trenchantly clear that she was not going to approve any arrangement whereby the children stayed with their mother, even if she was not arrested, due to the harm that she had caused to the children, and to the risk of further flight. It was for the father, as she put it, to “call the shots”:

“So, when they’re returned, father will take immediate, temporary, sole physical custody of the children. Now, if father at that point, after coming into contact with these children, sees that there’s an immediate danger issue, there’s nothing stopping him from calling up grandmom and saying, can you watch the kids? …

There's nothing stopping him from making a parental custodial decision. Okay? Then it gets immediately scheduled, as immediate as I can possibly be, which is usually within two to three days, immediate.

And then we come in and we talk more about the psychological trauma. We pick a reunification counsellor, and we see where the children are literally going to be laying their head moving forward.”

Father’s counsel said that he was trying to incentivise the mother to return, but Judge Rashid said that she did not think that anything of that kind could be done.

She accordingly made an order in these terms (‘the US Order’):

“ORDER

AND NOW, to wit, this 8^th day of May, 2025 upon consideration of Father’s Emergency Petition for Special Relief filed on February 28, 2025 and Mother’s Answer and Motion to Quash filed on April 8, 2025 argument of counsel on May 6, 2025, and recorded conference with counsel on May 8, 2025 it is hereby ORDERED and DECREED as follows:

1.

Father’s Emergency Petition for Special Relief is DENIED.

2.

Mother’s Motion to Quash is GRANTED without relief.

3.

It is further ORDERED as follows:

a.

Mother shall provide Father with itinerary of the flight on which the children ([names and dates of birth]) are booked to return to the United States. …

b.

Father shall assume temporary sole legal and physical custody of all children upon their arrival in the United States pursuant to Court Order dated October 25, 2022.

c.

Father shall provide a certified copy of this Order and the October 25, 2022 to any federal or state agency upon request.

d.

Father shall allow the children to be temporarily cared for a known family member if he determines that the children are experiencing extreme emotional or mental health issues while in his custody.

e.

Children may contact Mother by phone or video call at any time without restriction using their own cell phones. …

4.

Mother shall surrender the passports for both child to Father upon arrival in the United States. …

5.

Once children are in Father’s physical custody, [father’s counsel] shall notify Chambers and an emergency hearing will be scheduled at which children should be present and/or available for interview.

BY THE COURT: [Judge’s signature]”