CA-2025-001871 - [2025] EWCA Civ 1382

On behalf of the mother, Ms Anita Guha KC leading Mr Graham Crosthwaite accepted that the judge had identified the correct legal principles but submitted that he had misapplied them in adopting a flawed and overtechnical approach. She emphasised that the fundamental aim of the Convention was to rectify harm caused to the child by her wrongful removal and re-establish the status quo as expeditiously as possible so that disputes about the future care and welfare of the child can be resolved by the courts in that jurisdiction.

She identified a number of core features in her client’s case to which, she submitted, the judge attached insufficient weight. In particular he had failed to take into account the extensive detail about the child’s life in this country, set out over five pages of the mother’s statement. These included the fact that B has been living in this jurisdiction since September 2022 and in her current home for over two years; that she frequently spends time with her maternal family who live 15 minutes away from their home and are able to provide regular support with childcare; that she has attended a playgroup, forest school and two nurseries in this country, enjoys various extra-curricular activities, and has made a number of friends here; that she has been registered at a doctor’s surgery here since early 2023. Ms Guha submitted that taken together these facts demonstrate that B is physically settled in this country where she has been living with her mother since September 2022. Ms Guha submitted that the judge had given insufficient attention to the extensive evidence about the child’s settled life here and had instead focused excessively on the details of the communications passing between the parties. In doing so, he had adopted an “unduly technical approach to the question of settlement”, contrary to the approach proposed by Black J in F v M and N.

Ms Guha further relied on the frequent contact which B has enjoyed with her father, both in this country and in Portugal. The father has visited her here on a monthly basis, on occasions staying for a week or longer while working remotely. The mother’s representatives have calculated that the father has visited and stayed in this country on thirty-three occasions since September 2022. He visited the new home in this country and gave his approval before the mother and B moved in. Since September 2022, B has visited Portugal on six occasions. When visiting Portugal, she has maintained a relationship with her paternal family. At the end of each visit, she has left Portugal with her mother without the father making any attempt to prevent her leaving. At other times, there has been regular indirect contact between father and daughter via a video link. As a result, B has been able to maintain a close and loving relationship with her father and his family. Ms Guha submitted that the fact that she continued to retain her links with her father and paternal family in Portugal through planned holidays is a factor that assisted, rather than hindered, her settlement in this country.

Under ground 2, concerning the exercise of the discretion to return in the event that the Article 12 defence was established, Ms Guha understandably relied on the dicta of Baroness Hale in Re M (Zimbabwe) at paragraph 47. The one-year time frame of the Article 12 gateway had been far exceeded. Applying the principle that the focus of the exercise of the discretion must be the child’s welfare, Ms Guha submitted that the evidence showed that B is thriving in her home, social and family environment in this country and would suffer adversely if obliged to return to a precarious and uncertain existence in Portugal where her primary carer has no secure immigration status, independent accommodation, right to work, income or solid support network. There was no credible or cogent evidence over and above the father’s bare assertion to indicate that he would not continue to travel to this country on a regular basis and no evidence to suggest that that the mother would not continue to take B back to Portugal to spend time with her father and paternal family. The psychological evidence indicated that the stressors of a return to Portugal would impact adversely upon the mother’s symptoms of depression and wellbeing and coping skills which will inevitably compromise the quality and consistency of care that she has been able to afford B whilst they have been living in this country. This was, said Ms Guha, a paradigm case where the only conclusion reasonably open to the court is that the child will suffer more harm if she is exposed to the upheaval of leaving her home and life in this country to return to a precarious and uncertain existence in Portugal.

Ms Guha further argued, under ground 3, that the judge’s evaluation of the expert evidence as to the mother’s immigration status had been flawed and that this had impinged on his exercise of the discretion to return under Article 12.

In responding to the appeal, Mr Teertha Gupta KC, leading Ms Olivia Gaunt, understandably relied on the well-established principle that there are only limited circumstances in which an appellate court can interfere with a trial judge’s evaluation, citing the observations of Lord Reed, in the context of a child abduction case, in Re R (Children) (Reunite International Child Abduction Centre intervening) [2015] UKSC 35, at paragraph 18. The factual question as to whether a child is settled in this jurisdiction was for the trial judge. Mr Gupta submitted that the mother could only persuade this Court that the judge was wrong if she can satisfy the Court that he reached a conclusion which was not open to him. In this case, the judge carried out a detailed analysis of the evidence. His conclusion was open to him on the facts, having regard to, inter alia, the mother’s intentions and lack of settlement and B’s young age, which meant that she was not in full-time education and will have taken her cues, and derived her sense of emotional and psychological settlement, from her parents. Central to Mr Gupta’s argument was his submission that parental intention is a relevant factor when considering settlement. The younger and more dependent the child, the greater the importance to be attached to the parent’s intention and psychological state, as acknowledged by Thorpe LJ in Cannon v Cannon at paragraph 57. B has travelled extensively between the two countries and the judge was entitled to consider that she would not be able to distinguish between one country and another. Mr Gupta submitted that, on the basis of the evidence, including Ms Veitch’s report, it was plainly open to the judge to conclude that B was not settled in this jurisdiction.

On ground 2, Mr Gupta submitted that, if the Article 12 defence had been made out, the court’s discretion nevertheless to order B’s return was at large and the appeal can only succeed if the mother can show that the judge’s exercise of the discretion was wrong or irrational. There were a number of competing factors which the judge considered. His decision that if the discretion arose he would exercise it by ordering B’s return to Portugal was plainly open to him. In reaching that decision, he was entitled to take into account policy considerations. In particular, in this case, he was entitled to consider that the parties engaged in non-court dispute resolution prior to the father issuing his application. Mr Gupta submitted that this was only one factor in the judge’s analysis and rejected the suggestion that the judge had concluded that Convention policy trumped welfare considerations. There were unusual features of this case compared to previous cases where settlement has been found. Here, the judge was entitled to decide on the facts, including that B already has a home in Portugal, that she benefits greatly from her relationship with the father and that it was unlikely to be feasible for him to continue to travel to this jurisdiction for an indefinite period, that the welfare and policy considerations together militated towards a return.

Mr Gupta accepted that, on the basis of case law both in our courts and in other jurisdictions (as illustrated by a helpful table of sixteen cases prepared by Ms Gaunt), once it has been found that a child was settled in her new environment under Article 12 the exercise of the discretion to return her to her country of habitual residence was, in Mr Gupta’s phrase, as rare as hen’s teeth. He argued, however, that this only emphasised the importance of the judicial evaluation of the gateway stage of the defence with which an appellate court should refrain from interfering.