M v A (No 2: Application to Set Aside Return Order)

M v A (No 2: Application to Set Aside Return Order)

The applicant's unequivocal refusal to return to Poland with the children, linked to her mental health deterioration and vulnerability, constitutes a fundamental change of circumstances undermining the basis of the original return order. The children would face a grave risk of psychological harm or intolerable situation if returned without their primary carer, and proposed protective measures are insufficient given the respondent's conduct and lack of enforceability. Article 13(b) exception is established; the return order is set aside and non-return ordered.

Parties
Applicant: M; Respondent: A
Jurisdiction
England and Wales
Judgment Date
06 February 2025
Procedural Posture
Family Law Child Abduction / Application to Set Aside Return Order, Final Determination
Outcome
Application to set aside return order granted; non-return ordered; enforcement application refused.
Legal Topics
Hague Convention 1980, Child Abduction and Custody Act 1985, Article 13(b) Grave Risk Exception, Protective Measures, Mental Health Impact, Domestic Abuse Allegations, Summary Return Orders, Setting Aside Orders
Family Law International Child Abduction Hague Convention 1980 Child Abduction and Custody Act 1985 Article 13(b) Grave Risk Exception Protective Measures Mental Health Impact Domestic Abuse Allegations +2 more

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Parties

M

Applicant

A

Respondent

Procedural Posture

Family Law Child Abduction / Application to Set Aside Return Order, Final Determination

Legal Issues

  1. 1 Whether there has been a fundamental change of circumstances sufficient to set aside the original return order under the Hague Convention 1980
  2. 2 Whether the applicant's mental health deterioration and refusal to return constitute such a change
  3. 3 Whether Article 13(b) grave risk exception is established

Ratio Decidendi

The applicant's unequivocal refusal to return to Poland with the children, linked to her mental health deterioration and vulnerability, constitutes a fundamental change of circumstances undermining the basis of the original return order. The children would face a grave risk of psychological harm or intolerable situation if returned without their primary carer, and proposed protective measures are insufficient given the respondent's conduct and lack of enforceability. Article 13(b) exception is established; the return order is set aside and non-return ordered.

Court Disposition

Application to set aside return order granted; non-return ordered; enforcement application refused.

Orders

  • M's application to set aside the return order is granted.
  • Article 13(b) defence is established; summary return order is set aside.