Hague Convention Return Order: 6 Secrets to Setting One Aside

When a child is wrongfully removed across international borders, the Hague Convention return order is the primary tool used to ensure their swift return to their country of habitual residence. It is designed to be a fast-track process, but what happens if new information comes to light after the order is made?

In the recent landmark case of Re L and S (Application to Set Aside Return Order) [2023] EWHC 2617 (Fam), the High Court clarified just how difficult it is to reverse these decisions. At A L Law, we represented the applicant in this significant case, giving us unique insight into the “high bar” the court sets.

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1. The Threshold is Exceptionally High

Once a Hague Convention return order has been granted, the court is extremely reluctant to revisit it. To successfully “set aside” the order, you must prove more than just a simple disagreement with the Judge’s original choice.

Under the Family Procedure Rules 2010 (r.12.52A), you generally need to demonstrate:

• Fraud or Material Non-disclosure: One party hid vital facts.
• Mistake: A fundamental error was made during the initial hearing.
• Fundamental Change of Circumstances: Something has happened that completely undermines the basis of the original order.

2. A “Change of Mind” Isn’t Enough

One of the most common pitfalls in these cases is when the “taking parent” (the one who moved the child) simply decides they can no longer face returning to the other country.

The High Court in Re L and S was clear: an objectively unreasonable change of mind by a parent does not count as a “fundamental change.” The law prioritises the child’s return to the correct jurisdiction so that long-term welfare decisions can be made there, regardless of a parent’s self-generated refusal to travel.

3. Prosecution Risks Abroad Are Managed, Not Avoided

If you are worried that returning to a country like Italy or France might lead to criminal prosecution for child abduction, the court takes a pragmatic view.

While criminal proceedings might be “ex officio” (starting automatically regardless of the other parent’s wishes), the court often finds that these risks can be managed.

• Protective Measures: The court looks at whether you can be protected by “undertakings” or mirror orders in the foreign state.
• Engagement: Actively cooperating with foreign authorities is viewed more favourably than simply using the risk of arrest as an excuse to block a Hague Convention return order.

4. Evidence Over Assertion

You cannot simply claim that circumstances have changed; you must prove it with admissible evidence. In international cases, this often requires:

• Expert evidence on foreign law (criminal and family).
• Official documentation from local authorities or social services.
• Clear proof that the original “legal basis” for the return no longer exists.

5. Implementation vs. Basis

The court distinguishes between how an order is carried out and why it was made.

In Re L and S, the judge argued that even if the mother refused to return with the children, the legal basis of the order—that the children belonged in Italy for their welfare to be decided—remained the same. Issues like where the children live temporarily are “implementation” details, not reasons to scrap the entire Hague Convention return order.

6. Speed is Your Only Friend

If you believe a return order is fundamentally wrong, you must move fast. The usual route is an appeal, and “set-aside” applications are considered exceptional. Delaying your application can often be interpreted by the court as a tactical move, which rarely ends well.

FAQ: Your Quick Guide to Hague Return Orders

Is a Hague return order final? Not necessarily for the child’s long-term future. It simply decides where the long-term decisions should be made.

What if the other parent lied? If you can prove material non-disclosure or fraud, you may have grounds to set aside the Hague Convention return order.

Does the risk of arrest stop a return? Not automatically. The court prefers to manage these risks through protective measures rather than blocking the return entirely.

Need Specialist Help?

International child abduction is one of the most complex areas of law. If you are facing a Hague Convention return order or need to understand your rights regarding an international move, speak to the specialists at A L Law.

Contact A L Law today for urgent international family law advice.

Disclaimer: This article is a summary of the judgment in Re L and S [2023] EWHC 2617 (Fam) and does not constitute legal advice. A L Law represented the applicant in this case.