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.