Re D & Anor
[2023] EWHC 2129 (Fam)
L & Anor (Application to Set Aside Return Order), Re
10 November 2023
[2023] EWHC 2617 (Fam)
High Court
Mom took her kids from Italy to the UK without Dad's permission. A judge ordered the kids back to Italy. Mom tried to stop the order because she's afraid of getting arrested in Italy. But the judge said Mom's own actions caused that risk, and it wasn't a good enough reason to change the order. The kids still have to go back to Italy.
Key Facts
- •Mother wrongfully removed children L (12) and S (6) from Italy to the UK on September 7, 2022.
- •Father applied for summary return under the 1980 Hague Convention and the Child Abduction and Custody Act 1985.
- •A UK court ordered the children's summary return to Italy on February 14, 2023.
- •Mother applied to set aside the return order, citing new information about potential criminal proceedings against her in Italy.
- •Mother argued that her potential arrest and imprisonment, along with the children's potential harm without her care, constitute a fundamental change of circumstances.
- •Father withdrew his police complaint in Italy, but the criminal investigation continues ex officio (automatically).
Legal Principles
Power to set aside a return order exists where there's a fundamental change of circumstances undermining the basis of the original order.
FPR 2010 rule 12.52A, PD12F paragraph 4.1A, Re W [2018] EWCA Civ 1904
The threshold for setting aside an order is high; mere change of mind is insufficient.
Re W [2018] EWCA Civ 1904, Re B [2020] EWCA Civ 1057, Re A [2021] EWCA Civ 194
Risk of arrest and prosecution for child abduction, stemming from the abducting parent's own actions, generally doesn't meet the threshold for setting aside the return order.
H v K [2017] EWHC 1141 (Fam), Re L [1999] 1 FLR 433, Re C [1999] 1 FLR 1145
The Hague Convention prioritizes the child's speedy return to their habitual residence for determination of their long-term future.
B v B [2014] EWHC 1804 (Fam)
Outcomes
Mother's application to set aside the return order is dismissed.
The mother failed to establish a fundamental change of circumstances. The risk of arrest is largely self-imposed and mitigable through cooperation with Italian authorities. The father's undertakings regarding supervised contact, not the mother's presence, were key to the original order.