The recent English case of The Children: AB (aged 14) and CD (aged 10) [2025] EWHC 2508 considered when a return order can be set aside.

In this matter, a return order was made on 6 December 2024 for the two brothers to be returned to their Special Guardians, their maternal grandfather and step-grandmother. The children had been living with their Special Guardians in Ireland since 2020. In August 2024, the children’s mother wrongfully retained them in the North-East of England. A number of further applications followed the return order being made as follows, all of which were refused:

1. An application by the mother to appeal the first return order.
2. An application by the mother to set aside the return order.
3. An application to appeal the refusal to set aside the order.
4. An application by AB to be joined as a party and to be separately represented by a solicitor-guardian
5. An application by AB to set aside the return order
6. An application by the mother for CD to be joined as a party with a Guardian appointed on his behalf.

Since the return order, there had been 13 attended High Court Hearings with a further 3 orders made administratively. There had also been 6 unsuccessful attempts to implement the return order with these attempts involving input from social workers, police, Cafcass and the Tipstaff.

The children had also attended upon a single expert in relation to contact with their grandparents. This report concluded that a more conciliatory approach may help to soften attitudes and the children may feel more open to having a relationship with their grandparents if they were to withdraw their application and agree for them to remain with their mother.

Given all of the above, the Judge found that she was satisfied that there was no reasonable prospect of the return order being implemented in the foreseeable future. In reaching this decision, the Judge referred to FPR 2010, Practice Direction 12F, Para 4.1A which states that the court may set aside its own order where new information comes to light which fundamentally changes the basis on which the order was made. The threshold is high and evidence is required. The Judge referred further to Moylan LJ’s summary in Re B (A child) (Abduction: Article 13(b)) of the process in setting aside a 1980 Contravention order which is as follows:

o          the court will first decide whether to permit any reconsideration;

o          if it does, it will decide the extent of any further evidence;

o          the court will next decide whether to set aside the existing order;

o          if the order is set aside, the court will redetermine the substantive application.

It was therefore held that the return order be set aside.

This case demonstrates the significant difficulty in seeking to set aside a return order under the 1980 Hague Convention. It requires significant extenuating factors and is not a decision the Court reaches lightly.