Re L (Return Order: Set Aside Application)

Re L (Return Order: Set Aside Application)

There has been a fundamental change of circumstances since the original return orders, including the passage of time, Lena’s settled status in Poland, her strongly expressed wishes, ongoing criminal proceedings against the father, and practical impossibility of return. Applying either the higher threshold from Povse v Alpago or the welfare-based test, the threshold for setting aside the return orders is clearly met, and it would be unsafe and contrary to Lena’s welfare to enforce her return to England.

Parties
Applicant: Mother; First Respondent: Father; Second Respondent: Children’s Guardian (for Lena)
Jurisdiction
England and Wales
Judgment Date
22 September 2022
Procedural Posture
Wardship / Child Abduction (return Order) / Application to Set Aside/discharge Previous Return Orders
Outcome
Application granted; previous return orders set aside.
Legal Topics
Wardship, Return Orders, Brussels Iia Regulation, Hague Convention 1980, Parental Responsibility, Child Welfare, Jurisdiction, Enforcement of Orders
Family Law International Child Abduction Wardship Return Orders Brussels Iia Regulation Hague Convention 1980 Parental Responsibility Child Welfare +2 more

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Parties

Mother

Applicant

Father

First Respondent

Children’s Guardian (for Lena)

Second Respondent

Procedural Posture

Wardship / Child Abduction (return Order) / Application to Set Aside/discharge Previous Return Orders

Legal Issues

  1. 1 Whether there has been a significant change of circumstances since the original return order justifying setting it aside
  2. 2 Whether the welfare of the child now requires the return order to be set aside
  3. 3 Jurisdictional basis for setting aside a return order under Article 11(6)-(8) of Brussels IIa and/or inherent jurisdiction

Ratio Decidendi

There has been a fundamental change of circumstances since the original return orders, including the passage of time, Lena’s settled status in Poland, her strongly expressed wishes, ongoing criminal proceedings against the father, and practical impossibility of return. Applying either the higher threshold from Povse v Alpago or the welfare-based test, the threshold for setting aside the return orders is clearly met, and it would be unsafe and contrary to Lena’s welfare to enforce her return to England.

Court Disposition

Application granted; previous return orders set aside.

Orders

  • The orders of Mr Gupta QC and HHJ Nathan requiring Lena’s return to England are set aside.
  • Proceedings in this jurisdiction are concluded as regards the return order.