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

In an extempore judgment given on 21 July 2025, the President summarised the factual and procedural background, the applicable law and the parties’ submissions.

He summarised the recent US proceedings in this way:

“12.

Following the making of [the 5 November] order and the signing of that agreement, the father promptly issued a motion from the American court on 14 November 2024 seeking the court's order modifying its previous order. There then was a substantial delay before any substantive hearing which took place on 6 May 2025. It is not necessary for me to go into the whys and wherefores of that delay but at that hearing, the same judge who had presided in relation to these children on earlier occasions, declined to approve the consent order. She made an order giving temporary sole legal and physical custody to the father on the children’s arrival back in the USA but provided that the father was permitted to allow the temporary care of the children by another family member if he determined that there was a need to do so. The order provided for contact between the children and their mother over the telephone or in other remote ways. By that time it had become known to the parties through investigation that it simply was not going to be possible, in terms of the way that social services operate in America, for the children to be placed by the father or the mother in temporary local authority pre-arranged foster care.

13.

Following the outcome of the hearing before the American court on 6 May, the mother brought proceedings back to this court asserting that the father had failed to comply with the terms of the consent agreement. It is certainly the case that he failed to succeed in obtaining the variation of the order in the terms that were to have been sought.”

(In fact, it was the father who first applied to restore the matter.)

The President’s discussion and conclusions are at [28-32]:

“28.

I have already referred to the law, the test is plain, the bar is high. There will be few successful cases and the court will only grant a reopening of the proceedings if there has been a fundamental change to the basis upon which the decision and the order were made and so it is not enough for there to have been a change in the basis of the order, that is plain in this case. What has to happen is that the fundamental understanding of what would happen in the case has to have changed.

29.

What is the basis upon which the decision was made? Well that is set out in our judgment in paragraphs 49 to 55 to which I have already made reference. The basis as I read those paragraphs, is that the children are not to go into their father's care but into the care of some other individual or organisation. That that is so is also evidenced some months later by the terms of the November consent order. Again I have already read out paragraph 8(a) and 8(b). Both of those are satisfied in the present circumstances despite the change of detail and I say that because paragraph 8(a) is for there to be a hearing before the American court as a matter of urgency as soon as the children are brought back to the jurisdiction, and that remains part of the plan. Paragraph 8(b) is to take steps, “so as not to require the children to be placed in his care upon their return.” The default is therefore for the children to be with someone else.

30.

The consent agreement is also in my view, of significance. Again, I have read that out. The focus of the consent agreement is to stress that the children are not to be placed in the father's care. It is not a requirement that they be placed in foster care or anywhere else. The point is that they are not to go to the father but that they are to go to a third party. The agreement is also on the basis that there would be an earlier review before the American court and again that that remains in place. Indeed the matter has already been to the American court and the court is seized of it and has made some orders to which I have already referred. So whilst foster carers are no longer a possibility, it remains open to the mother to put forward anyone that she chooses and in default of that, the paternal grandmother is in readiness to take on the care of the children.

31.

So the basis of the decision made in June reinforced by the orders in November, was that it was not intolerable for the two children to be in some form of temporary care with another person pending an emergency review hearing in America. That basis has not fundamentally changed in my view. The change has been to the detail of the arrangement but the basic structure remains the same. In any event, these arrangements were only ever a holding mechanism pending a return to the American court as a matter of urgency. So far as the primary grounds for setting aside the decision are concerned, I reject the case put forward by the mother and the children and conclude that there has been no fundamental change to the basis upon which the decision about an intolerable situation was made.

32.

Separately, the question of delay in my view comes nowhere near establishing a fundamental change. By the time the court heard this case in June of last year, the children had already been here two years. It is highly regrettable that that is the case. They were already established in school here, they were already firmly of the view that they did not want to go back. Further time has consolidated that but not to a degree that fundamentally changes the landscape as it was before the court in June of last year. Therefore looking at delay either on its own or cumulatively with the other points that are made, I am not persuaded that there are grounds here for allowing the mother and the children's applications to set aside the order.”

The President then made the order now under appeal, which includes these provisions:

“3.

The Court approved the amended plan for the return of the children to the USA pursuant to the return order, dated 5 November 2024, as set out below.

Undertakings

4.

The father continues to be bound by the undertakings set out in Annex A to the order of 5 November 2024.

5.

The mother continues to be bound by the undertakings set out in Annex B to the order of 5 November 2024.

6.

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.

7.

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 first hearing listed in the USA and thereafter.

The terms and implementation of the return order

8.

The varied terms as approved by the Court for the children’s return to the USA, pursuant to paragraph 15 below, are as follows:

(a)

The children shall remain in the temporary physical custody of the mother, provided she is not detained upon her arrival in the USA.

(b)

In the event that the mother is detained upon her arrival in the USA, the children shall be placed in the temporary physical custody of the paternal grandmother, [name], pending the emergency hearing to be obtained as below.

(c)

The father will obtain an emergency hearing before Judge Rashid sitting in the Court of Common Pleas of Delaware County, Pennsylvania.

(d)

The father will not seek to have any form of contact with the children pending the emergency hearing.

(e)

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.

(f)

All parties may contact the District Attorney’s office and request the District Attorney’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.

(g)

The father will notify the FBI to assist with the planning of the children being placed in the temporary physical custody of the paternal grandmother, [name] including whether the children can be accompanied on their flight from London to Philadelphia by their servants or agents.

(h)

The father agrees to use best endeavours to seek assistance for the travel of the mother from London to Philadelphia in accordance with the return order.

IT IS ORDERED THAT:

…

Application to set aside

11.

The applications to set aside the return order dated 5 November 2024, made on behalf of the mother on 12 June 2025 and on behalf of the children on 26 June 2025, are dismissed. …

Variation of the return order

14.

Paragraph 19 of the order dated 5 November 2024 is discharged subject to the terms and implementation of the return of the children to the USA as set out in this order and the return order is to take immediate effect.

Return order

15.

The mother shall return or cause the return of the children, [A, date of birth] and [B, date of birth] 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.

16.

The return order of 5 November 2024, shall be implemented by the mother accompanying the children to the USA on a direct flight to Philadelphia, Pennsylvania departing from a London Heathrow airport forthwith and in any event on a date no later than 12 August 2025, after the date upon which the order is immediately enforceable. …

Disclosure of papers

21.

There shall be permission to the parties to disclose the papers in these proceedings including the Court’s judgment and orders to any lawyers that they may instruct in the USA in respect of any current or future proceedings in relation to the parties and/or children and to any Court in the USA seised of such proceedings. …

Listing

24.

This matter is listed for a remote hearing at 12 noon on 28 July 2025 for consideration of the practicalities of the return of the children to the USA. …

Dated: 22nd July 2025”

A hearing on 28 July did not resolve remaining issues about the costs of the mother and children’s travel.