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

The sole ground of appeal, advanced by the children and predictably supported by the mother, is that the President was wrong to find that there had not been a fundamental change in circumstances which undermined the basis for the original return order. It is said that the President and UTJ Mandalia plainly considered it to be intolerable for the children to be placed into the custody and care of the father on return. However, as a result of the domestic order, it is now entirely in the gift of their father as to where and with whom they should be placed on their return. The children barely know their paternal grandmother. The President did not grapple with the effect of the US Order and the refusal to put in place a regime that reflected the basis on which the return order was made. There is no finding that the father can be relied upon to honour his agreement to the English court, even if the US Order in fact permitted him to do so. The children accordingly cannot be assured as a matter of law or fact that on a return they will not be placed in the care or control of their father before the matter comes to court. The protective steps required by the English court are now ineffective, and that was clearly a fundamental change of circumstances.

The father reminds us that welfare responsibility for children rests with the home state, that the Hague Convention is a limited jurisdiction, and that the power to set aside a return order is still more limited. He accepts that the children are experiencing extreme emotional and mental health issues due to their mother’s behaviour. He further accepts that the foundation of the original return order was that the children are not to go into his care upon their return to the USA. However, it was not regarded as intolerable for the children to remain temporarily in the care of another person (foster care or third party) pending an urgent hearing, and that underlying position has not fundamentally changed. While the details of the implementation arrangements have altered, the essential structure is principled and unchanged. Placement with a third party meets the criteria for both courts. The grandmother (with whom the children used to get on well, as the mother accepted in the tribunal proceedings) cannot be criticised as a short term carer. Her availability is the key reason why there has not been a fundamental change of circumstances. It was open to the mother to put forward someone of her own choosing, but she has not done so.

The father further argues that the President was entitled to be satisfied that the children would not be placed in his care and control, given that:

In any event, the original return order had contemplated and approved the return of the children to the USA without the desired arrangements in place, as it provided that the father would be released from his agreement to obtain an urgent hearing should the mother not agree to the consent order.

The parties made submissions about the position that would arise if this court held that the return order should have been reconsidered. In this respect, the father’s fallback position was that the appeal should be adjourned to give the US court the opportunity to consider the up to date position.