Case Summary: M v A (No. 2: Application to Set Aside Return Order) [2025]

M v A (No. 2: Application to Set Aside Return Order) [2025] (Fam)

This case concerns two children, T aged 9, and H, aged 6. Both children are dual nationals of the UK and Poland. Both children have lived in Poland for their whole lives prior to the commencement of proceedings.

In July 2024, the mother, who is British, brought the children to England for a holiday. She  subsequently decided not to return the children as she alleged domestic abuse by the father, who is Polish. A return order was made on 9 December 2024 where it was found that the Article 13(b) defence under the 1980 Hague Convention (grave risk of harm) had not been made out due to protective measures. That judgment can be read here M v A [2024] EWHC 3230 (Fam). 

The Issues

In the subsequent application, the mother sought to set aside that order, submitting there was a fundamental change in circumstances, namely:

1. a severe deterioration in her mental health after the return order was handed down; and

2. her decision not to return to Poland with the children under any circumstances.

The threshold for setting aside a Hague return order is high and reserved for exceptional cases. A change of mind by a parent will only justify setting aside the return order if it is genuine and reflects a fundamental shift in circumstances. The court emphasised the need for careful consideration of assertions relating to non-return, especially where raised post-order. 

The Legal Framework

The court applied the four-point rubric for setting aside a return order from Re B (A Child: Abduction: Article 13(b)) [2021] 1 FLR 721 set out by Moylan LJ at [89]:

1. whether the court should permit reconsideration;

2. the extent of the further evidence;

3. whether the order should be set aside;

4. redetermination of the substantive application.

The mother, in this case, had to show a “fundamental change of circumstance” that “undermines the basis of the original order” following Re W [2019] 1 FLR 400. 

Judgment

The mother’s mental health alone did not constitute a fundamental change, as this had been anticipated and addressed in the original judgment. However, the mother’s genuine refusal to return to Poland with the children did constitute a fundamental change. The judge accepted the mother’s position as authentic, influenced by the following factors cumulatively:

1. the mother’s credible evidence of domestic abuse;

2. the psychological impact of the return order;

3. consistent statements to professionals and in court documents;

4. the father’s lack of detailed rebuttal to allegations of coercive and controlling behaviour.

The court ordered the return order to be set aside, following the test in Re B, ultimately concluding that Article 13(b) was satisfied as a return to Poland without the mother would expose the children to a grave risk of harm. Further, the court refused the father’s enforcement application.