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

In their judgment of 28 June 2024, the President and UTJ Mandalia expressed their conclusions about the ‘intolerable situation’ defence:

“49.

Turning, therefore, to an evaluation of ‘intolerable situation’ by focusing solely on the children having to return to the USA, it is undoubtedly the case, and is accepted by the father and the children’s guardian, that the experience for the children of going back across the Atlantic with their profoundly reluctant mother will be traumatic to a significant degree. We accept that it is probable that she will be arrested on arrival. We understand that this is likely to involve officers boarding the plane and removing her prior to the other passengers disembarking, and that the children will then be taken into the care of social workers. We do not accept that it is likely that the children will be passed into the care of their father at that stage. Given their response to the guardian when they, erroneously, thought that he might be in the UK, they are likely to display extreme reluctance to see him, let alone be placed in his care. We accept that he intends to suspend the current custody order in his favour, and that he will make it clear to the CYS and other authorities that he does not seek the interim care of the children, but we will require him to do so before any return order takes effect. We join with the guardian in expecting the children’s mother to identify a friend or other trusted member of the community in Pennsylvania who can take on the short-term care of the children on their arrival in the US, but we have decided this issue on the basis that the default position, namely short-term foster care will be provided for them.

50.

Moving on, we accept that the mother is likely to be kept in custody for a time. She has no accommodation readily available to her in the US, and no immediate income. We do, however, accept the assertion made on behalf of the guardian that the mother is entitled to apply to the UK Home Office for provision of a resettlement grant to her to provide the wherewithal for her to rent short term accommodation. As a failed asylum seeker, on voluntary return, provision of help with reintegration costs with support from £1500, depending on individual circumstances is in the experience of UTJ Mandalia, available to support an assisted departure by an application to the Voluntary Returns Service. We accept that the criminal process will be likely to run its course in the US and that there is a likelihood that the mother will receive a short term of imprisonment, however this may be mitigated by the father making it clear, as he has committed to do, that he does not want the mother to be imprisoned, nor would he initiate any criminal proceedings against the mother in respect of the abduction.

51.

Looking beyond the first 2 or 3 months, it is likely that the Family court in the US will be seized of the case and will make its own determination as to the children’s future arrangements.

52.

We have also taken some supportive account of the fact that, in contrast to a case where a grave risk of physical or psychological harm is established on the basis that the children are returning to a situation which will bring them back into contact with an abusive parent, no aspect of what is said to be intolerable in the children’s situation arises from any action or risk of harm relating to their father. The difficult situation that the children are currently in has been entirely generated by their mother’s actions.

53.

On that basis, the children’s situation will be traumatic, stressful and upsetting for them on their return to the US. This will be acutely so on the day of return itself and is likely to remain so, to a lesser degree, for some weeks before medium to long term arrangements can be made. To a degree, there will be upset and even trauma involved in the repatriation of any children who have been abducted and kept away from their home country by a parent who resists a return order. The extent of upset and trauma here is greater because of the likelihood that their mother will be arrested and kept in custody on arrival, with the children moving to foster care, but such circumstances are not without precedent.

54.

It is a regular aspect of the work of social workers and the decisions made by Family judges, that children are placed in foster care when they do not want to go there. Whilst unwelcome and upsetting, to be placed in foster care for a short period, in our view, falls well short of being placed in an intolerable situation – namely one that these children should not be expected to tolerate in the circumstances of this case.

55.

We therefore rely upon and share the guardian’s analysis that the default plan, including foster care before the medium-term arrangements are settled, is not intolerable for these two children. Thereafter, the US court will be seized of the case and will determine the outcome that best meets the children’s detailed needs. On that basis, we hold that the mother’s case under Art 13(b) based on ‘intolerable situation’ fails.”

At [63], the court recorded verbatim the protective measures offered by the father:

“a)

‘CYS to be informed of the mother’s return.

b)

Father will tell the prosecutor and Judge that he does not want the mother to be imprisoned, nor would he initiate any criminal proceedings against the mother in respect of the abduction.

c)

Father agrees that the children should remain in their mother’s care prior to any custody/contact hearing in the USA, including if she is released on bail.

d)

Father will not seek to contact the mother prior to any hearing in the USA.

e)

Father will not harass, molest pester, use or threaten violence against the mother.

f)

Father would pay for the children’s flights and would not attend the airport on their arrival.

g)

Father agrees to pay for therapy for the children.’”

In relation to the child objections defence, the court found that both boys objected to return to the USA and had reached an age and maturity that justified taking account of their views. The gateway for the court to exercise its discretion to refuse a return was therefore satisfied, but the court declined to do so for these reasons:

“67.

In approaching the exercise of our discretion whether or not to order the children’s return to the US, despite their very clear objection to that outcome, we have taken account of all the circumstances and in particular:

i)

The children’s views are firmly based upon the narrative that their father has abused them and is an altogether malign individual. The allegations that underly that narrative have been investigated by the CYS on a number of occasions, the US Family Court and the FtT. Each of these bodies has found that the evidence fails to support the allegations and that they are unfounded or unproved (even, in the FtT, on a lower standard of proof). Although we accept that the children’s subjective views are firmly held, the weight to be attached to the children’s objections that are based upon an unfounded narrative, in this case, must be substantially reduced.

ii)

Whilst not being in a position to make any findings, and expressly not doing so, the prospect that the children’s views of their father may have been generated by alienating behaviour on the part of their mother and that they have thereby suffered harm requires serious and detailed consideration, as does the prospect of the children being reintroduced to their father. In terms of the policy of the Convention these matters are for the court in the children’s home state but, more importantly in this case, the involvement of the father can realistically only be achieved if they are back in the US.

iii)

The children are American and have no ties or connection with the UK.

iv)

In the UK the mother and children will continue to live in very straitened accommodation on a basic subsistence allowance until, at some stage, they may be removed back to the US in any event, because they have no lawful basis to remain in the UK.

v)

It is the guardian’s professional view that it is in the children’s best interests to be returned to the US.

vi)

The current situation has been entirely generated by the belief of the children’s mother that the children have been abused by their father. There is no credible evidential basis for this belief, yet the children were abducted, in breach of orders of the US court, and have been kept, initially secretly, in the UK because of the mother’s belief. There is a strong policy ground based on comity between member states and the father’s application.

68.

In all the circumstances, and notwithstanding the children’s objections, we take the clear view that both A and B must be summarily returned to the USA.”

So far as concerns this appeal, the resulting order of 28 June 2024 went no further than to recite that the children should return to the USA on terms to be agreed by the parties or determined by the court.

The order of 5 November 2024 is a detailed document that endorsed an outcome negotiated by the parties. It provided relevantly:

“IMPLEMENTATION OF THE RETURN ORDER

8.

The father has agreed that he will:

(a)

Obtain a hearing in the US custody proceedings at which the court can consider the question of temporary custody, such hearing to be listed if possible between 7 and 14 days following the children’s return, and

(b)

Take appropriate steps as advised by Mr Scanlon [his US legal expert] to seek to procure that the effective current custody order in his favour is modified so as not to require the children to be placed in his care upon their return pending the proposed hearing in the US custody proceedings referred to in (a) above on the basis that the matter can be reconsidered at that hearing. In the first instance, subject to the mother consenting to the same, the father will file a consent order in the US Court in the terms appended to this order; in the event that the US court is unwilling to approve the consent order, the father will take the alternative step advised by Mr Scanlon.

The steps referred to in (a) and (b) will be taken in advance of the children’s return to the USA, subject to paragraph 20 below.

9.

The father has further agreed that in the event, as is likely, that the mother is arrested at the airport upon her return to the USA and the children are removed from her care, the children should not be placed in his care pending the hearing referred to in paragraph 8(a) above but be placed into foster care in the absence of any other suitable third party being available.

10.

Pursuant to the Court’s order made on 18 June 2024 the father’s solicitors have sent Children Youth Services (‘CYS’) in Pennsylvania the respectful request directed to them by the Court comprising a series of questions relating to actions which they may take to obtain a placement for the children in the event of their separation from the mother upon their return to the USA.

11.

The Court’s intention is that the order for the return of the children to the USA should be implemented in accordance with the father’s agreements set out at paragraphs 8 and 9 above.

12.

The father reaffirms that upon the mother’s return to the USA he does not wish for her to be the subject of a prosecution for offences arising from her removal of the children from the USA on 4 August 2022 and that he does not wish for her to be arrested, detained or sentenced to a term of imprisonment. He invites the relevant police and prosecuting authorities in the USA (to whom a copy of this order may be disclosed by any party) to have regard to his wishes in this respect.

13.

All parties may contact the DA’s office and request the DA’s office to provide a document confirming that they have acknowledged the father’s position that he does not wish for the mother to be arrested, detained or sentenced to a term of imprisonment.

UNDERTAKINGS

14.

The father gives the undertakings set out in Annex A to this order.

15.

The mother gives the undertakings set out in Annex B to this order.

16.

The undertakings given by the father and the mother constitute binding and enforceable obligations in this jurisdiction and it is intended that the said undertakings should also constitute binding and enforceable obligations in the USA.

17.

Nothing in the undertakings given by the father or the mother shall constitute any admission by either of them as to any allegation made by the other party or shall be intended to bind or otherwise influence the courts of the USA in any future determination of matters of welfare concerning the children once those courts are in a position to deal with such matters at the hearing referred to at paragraph 8(a) above and thereafter.

THE COURT ORDERS THAT:

Return Order

18.

The children, [A] and [B] shall return forthwith to the jurisdiction of the United States of America (State of Pennsylvania) pursuant to Article 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

19.

Subject to paragraph 20 below, the order for the return of the children at paragraph 18 above shall not be implemented until such time as the custody order in the father’s favour has been modified in accordance with his agreement at paragraph 8 above.

20.

In the event that the mother does not provide her signed consent to the proposed consent order in the terms appended to this order by 12 November 2024, the father shall be discharged from his agreement at paragraph 8 above, paragraph 19 of this order shall be discharged and the return order at paragraph 18 shall be immediately enforceable.

21.

Upon the return order at paragraph 18 above becoming enforceable pursuant to either paragraph 19 or 20, the order shall be implemented by the mother accompanying the children to the USA on a direct flight to Pennsylvania departing from a London airport on a date no later than 21 days after the date upon which the order shall have become enforceable. The parties shall endeavour to agree the precise mechanics and timing of the children’s return to the USA by no later than the date 7 days after the date upon which the order shall have become immediately enforceable, in default of which the application shall be returned to court at short notice for urgent determination of those issues (for the avoidance of doubt such application shall only be listed before the President if he is available and may otherwise be listed before any available High Court Judge).

ANNEX A – FATHER’S UNDERTAKINGS

a.

Not to support (save as may be required by law) or institute any proceedings, whether criminal or civil, for the punishment of the mother arising out of the removal of the children from the USA on 4 August 2022 and the subsequent retention of the children in England and Wales since 4 August 2022 to date.

b.

To pay the reasonable cost of direct economy flights for the children to return to the USA in accordance with this order and for appropriate therapy for the children following their return.

c.

In the event that the children are accompanied to the USA by the mother, not to attend at the airport upon their return.

d.

Not to remove the children from care of the mother upon the children’s return to the USA pending the first on notice hearing before a court of competent jurisdiction to be listed pursuant to paragraph 8(a) of this order.

e.

Not to attend at any property at which the mother and the children are staying pending the hearing referred to in paragraph 8(a) of this order.

f.

Not to use or threaten violence against the mother or the children, or harass, molest or pester the mother of the children pending the hearing referred to in paragraph 8(a) of this order.

g.

Not to contact the mother directly pending the hearing referred to in paragraph 8(a) of this order.

h.

To cause a copy of this order (including its annexes) to be lodged with a Court of Competent jurisdiction and provided to the US Central Authority and the CYS prior to the return of the children to the USA in accordance with this order.

ANNEX B - MOTHER’S UNDERTAKINGS

a.

To accompany the children on their return to the USA in accordance with this order and any subsequent order in which the arrangements for their return are set out.

b.

Within 24 hours of the details being known to her, to provide the CYS with details of the address at which she intends to reside with the children following her return to the USA (subject to her not being detained following her arrival) and, subject to the children not being removed from her care by the CYS, to ensure that the children sleep each night at her disclosed address.

c.

Forthwith upon the children’s return to the USA in accordance with this order to cause the children’s passports, to be lodged with either CYS, the police or the father pending the hearing referred to in paragraph 8(a) of this order.

d.

Not to apply for any further passports for the children pending the hearing referred to in paragraph 8(a) of this order.

e.

Not to use or threaten violence against the father or the children, or harass, molest or pester the father or the children pending the hearing referred to in paragraph 8(a) of this order.

f.

Not to contact the father directly pending the hearing referred to in paragraph 8(a) of this order.”