The Court of Appeal has allowed a mother’s appeal against the High Court’s refusal to set aside or stay an order for the return of her son to Texas.
The boy’s father was an Indian national who lived in the USA. He and the boy’s mother had met in 2023 and she had subsequently moved to the USA. They had married during a visit to the UK in April 2024, and the boy had been born in the USA in August.
The mother had found it difficult to settle in the USA, and in March 2025 she and the boy had flown to the UK, with the father’s agreement, and gone to stay with her parents. The following month, she had told the father that she did not want to return to the USA. In the following months, they had discussed what to do. The father had twice visited the UK and the family had gone on holiday together.
In February 2026, the father applied to the High Court for an order under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the boy’s return to Texas. By this time, he and the mother were expecting another child. Granting the application, the Court rejected the mother’s argument that a return would cause a deterioration in her mental state so as to impact her ability to parent the boy.
The mother subsequently applied for the return order to be set aside or varied because of a deterioration in her health. She filed a letter from a perinatal psychiatrist and a consultant physician in support of her application, both of whom had advised against air travel. However, the Court observed that her health issues had been squarely before it at the hearing, and was very surprised that it had not been told that she had been referred to a perinatal mental health clinic. The Court recognised that a return would be very difficult for her but was not satisfied that there had been a fundamental change in circumstance that undermined the basis of the original order.
Ruling on the mother’s appeal against that decision, the Court of Appeal noted that the return order could not be implemented until after she had given birth, given that two medical practitioners had diagnosed her as unfit to travel. In those circumstances, the Court was faced with two options: to order the child’s immediate return to the US with his father or to stay the order until after the baby was born.
In the Court’s view, the first option was not realistic. Approving an amended plan that would see the boy separated from his mother when she was about to give birth to his sibling would be a fundamental change in the circumstances provided for in the return order. It was at least arguable that it would give rise to a grave risk that he would be exposed to psychological harm or otherwise placed in an intolerable situation. The Court therefore allowed the appeal against the refusal to stay the order.
Turning to the application to set the order aside, the Court observed that a major factor which had led to the change in the mother’s circumstances – a deterioration in her health at a late stage in her pregnancy, which had led to medical advice not to fly – was likely to disappear after the baby was born. Allowing the appeal, the Court remitted the application to the High Court, to be heard six weeks after the birth.
