Re T (Abduction: Protective Measures: Agreement to Return) - Key Issue: Court Discretion, Protective Measures, and Changed Circumstances in Hague Convention Cases

Citation: [2023] EWCA Civ 1415
Judgment on


The case of “Re T (Abduction: Protective Measures: Agreement to Return)” [2023] EWCA Civ 1415 addresses complex issues surrounding the 1980 Hague Convention on the Civil Aspects of International Child Abduction, particularly when an alleged agreement to return is reached under the influence of rigorous legal debate and psychological duress. The appeal provides substantial jurisprudential insights into the nuances of ‘protective measures,’ consensus among disputing parties, the discretion of the court in acknowledging a concluded agreements, and assessments of changed circumstances during the process.

Key Facts

This case involves an appeal against orders pertaining to the return of a child to the United States of America under the 1980 Hague Convention. Key facts include:

  • A contested agreement about the child’s return is allegedly reached at court.
  • There is a lack of consensus about the effectiveness of proposed protective measures in the USA.
  • An issue arises about ‘soft landing’ provisions and their necessity for the agreement’s effectiveness.
  • At the eleventh hour, before the order is made, the taking parent retracts the offer to accompany the child, asserting she will not travel due to mental health reasons.
  • The court is tasked with adjudicating on whether a seemingly concluded agreement stands, and how to approach the application for return in the wake of changed stances from the taking parent.

The legal principles involved in this case revolve around the enforcement of protective measures, the application of agreements in child abduction proceedings, and the approach the court should take if the taking parent changes their intention to return with the child before an order is made.

Enforcement of Protective Measures

The enforceability of protective measures is scrutinized meticulously. The court must ascertain that such measures will effectively mitigate the claimed risks once the child is returned. It was underscored that measures should be treated as “protective” only if they are effective, with undertakings made in English courts needing potential reinforcement or mirroring by orders in the foreign jurisdiction.

Concluded Agreements and Court Discretion

The case evaluates whether principles from cases like ‘Rose v Rose’ and ‘Xydhias v Xydhias,’ which allow a judge’s discretion to determine that a concluded agreement has been reached in financial remedy proceedings, can extend to child abduction cases under the 1980 Hague Convention. The court concluded that these principles are of limited applicability, given the paramountcy of child welfare and the summary nature of Hague proceedings.

Changed Circumstances

When the taking parent changes their position regarding return before a final order is confirmed, the court cannot merely adhere to an already-made decision but must reconsider the changed circumstances, especially in light of potential impacts on the child’s welfare.


The appeal resulted in a set aside of the contested orders due to:

  • No clear consensus on a fundamental term — the effective implementation of protective measures in Texas.
  • A misapplication of the principles from ‘Rose’ and ‘Xydhias’ to a 1980 Hague Convention case.
  • The court’s failure to adequately address the mother’s change of position and its implications for the child.

The case was remitted for urgent case management directions with a view to prompt relisting before a Judge of the Family Division.


This case underscores the court’s obligation to carefully evaluate the effectiveness of protective measures and to recognizably distinguish between agreements that truly reflect mutual assent and those clouded by unresolved core issues. Moreover, it serves as a cautionary tale against attempting to transpose legal principles pertaining to financial remedy agreements directly onto cases involving the disposition of a child under the 1980 Hague Convention. In child abduction cases, the court must not allow procedural expediency to overshadow the need for resolving matters in a manner that serves the child’s best interests and upholds the protective spirit of the Convention.