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

The judge carried out a detailed assessment of the evidence and submissions on all matters relevant to the Article 12 defence. In my view, however, his analysis and interpretation of Article 12 and the exercise of discretion was flawed in a number of respects and the conclusion at which he arrived was wrong, for several reasons.

The first object of the Convention in Article 1(a) is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. In such circumstances, the Convention authorises the courts of signatory States to order the child’s summary return without carrying out a full investigation of the child’s welfare interests. It is important to note that this is not an exception to the principle that the child’s welfare is the paramount consideration in making decisions about her future care. On the contrary, as Professor Perez-Vera identified in the Explanatory Report, the objects of the Convention in Article 1 “correspond to a specific idea of what constitutes the ‘best interests of a child’”, which, as the Preamble demonstrates, the signatory States recognised as being of paramount importance. In those circumstances, the summary return of a child who has been wrongfully removed or retained is consistent with her welfare unless the abducting parent establishes one or more of the defences under the Convention and the court in the requested State concludes that the child should not be returned. But where the child has not been returned promptly within a year of the abduction, and has settled in a new environment, the scope for the court to order her summary return without a full examination of her best interests will be extremely limited. That is entirely consistent with the policy of the Convention as reflected in its Preamble and substantive provisions.

I endorse the summary of the legal principles applicable to Article 12(2) set out in the judgment of Williams J in Re B (A Child) [2018] EWHC 1643 (Fam). The summary was cited by the judge and not challenged in argument before us. There is, however, one point of divergence on the authorities which calls for consideration here.

As noted above, in her discussion of Article 12 in Re N, which has been substantially followed by other judges, including by this Court in Cannon v Cannon, Bracewell J observed that establishing that a child was settled in her new environment required the abducting parent to demonstrate that the “present position imports stability when looking at the future, and is permanent in so far as anything in life can be said to be permanent”. In my view, though settlement plainly implies arrangements that are long-term rather than transient, it is, as the commentators cited above have observed, “going too far” to require the respondent to demonstrate that they are “permanent”. There is no good reason for introducing a requirement that the abducting parent must demonstrate that the family environment in which it is asserted the child is settled is a permanent one. My conclusion on this point is consistent with the approach taken in the first-instance cases cites at paragraph 14 above – Re C (Sir Mark Potter P) and Re E (Moylan J) – in which the court found the child to be settled in their new environment notwithstanding uncertainty as to their immigration position.

It follows that, in attaching weight (at para 56) to the fact that “M had not communicated to F an unequivocal intention permanently to reside in this jurisdiction with B until recently” and then concluding (para 58) that, because “B has not received a clear and consistent message that this country is and will be her permanent home” she “will therefore feel ‘in limbo’ and … cannot as a consequence have a sense of physical, psychological and emotional settlement here”, the judge was applying too stringent a test.

The question to be answered under Article 12(2) is whether a child is settled in her new environment. “New environment” is a broad concept. As emphasised repeatedly in reported cases, it includes not just the physical but also the emotional and psychological. It encompasses, in Bracewell J’s words in Re N, “place, home, school, people, friends, activities and opportunities”. It also includes the time she spends with other family members, including the left-behind parent. Regular contact with the left-behind parent will be part of the child’s new environment.

Over the intervening period of nearly two and a half years between her retention in this country in October 2022 and the start of these proceedings in March 2025, B had lived for the majority of the time in this country, with several periods, some quite lengthy, in Portugal. She established roots in this country, going to nursery, making friends, spending much time with her extended maternal family. But importantly she also had frequent contact with her father and his family.

I consider the judge was wrong to conclude (at para 61) that “a lack of settlement in this country will have been compounded by B’s six visits to Portugal … and visiting F’s home in Portugal”. On the contrary, the regular and extended visits to see her father in Portugal, coupled with his regular and frequent visits to see her in this country, were part of the new environment into which she was becoming settled. Equally he was wrong to conclude (at para 62) that the “requisite physical integration and stability for the purposes of Article 12” was lacking because “there are also properties in Portugal which B considers to be home, and has many friendships and family there with whom she has a close connection and has maintained a relationship with physically when in Portugal and remotely when in this country.”

In many, perhaps the majority, of cases where a period of such length has passed between the act of abduction and the start of the proceedings, the child has spent at least part of the time in a location of which the left behind parent is unaware, and/or with little if any contact taking place. This case is very different. At all times the father has known where B is living. He visited her here on many occasions. He was consulted about the choice of accommodation in this country. Far from keeping B away from her father and his family in Portugal, the mother has taken her back there on half a dozen occasions, sometimes staying for lengthy periods, and has facilitated regular and open contact. On those occasions, the father has taken no steps to prevent B and her mother coming and going freely.

As Williams J observed in Re B, concealment is likely to undermine settlement whereas living openly is likely to permit greater settlement. Here, the mother and B’s whereabouts were not concealed. They were fully known to the father. Although he did not approve of the new arrangements, and sought to change them through negotiation, he accommodated them in his day-to-day plans for the child. If, as Williams J rightly observed, the absence of a relationship with a left behind parent will be an important consideration in determining whether a child is settled, it must follow that the continuation of the relationship through regular or repeated contact is likely to make it more likely that settlement will be established. In this case, by the time of the hearing before the judge, the father had visited the UK on 33 occasions and had regular contact with B on every visit. The mother had taken B back to Portugal on six occasions without any attempt by the father to stop them leaving at the end of each visit. As Ms Guha submitted, in sorting out these arrangements the parties were able to work collaboratively and with a degree of harmony, and were able to shield their disagreements from the child who saw them working together. This is borne out by the child’s demeanour during handover between the parents, as described by the Cafcass officer and quoted in paragraph 30 of the judgment. It has not been contended that this amounted to acquiescence on the part of the father, but in my view it does establish a pattern of life which is consistent with a settled environment in the broadest sense. I accept Ms Guha’s submission that the fact that B continued to retain her links with her father and paternal family in Portugal is a factor that assisted, rather than hindered, her settlement in this country.

In those circumstances, the fact that her mother prevaricated and changed her mind about what to do on several occasions, and only formed a firm intention to live in this country a few months before the father issued these proceedings, did not prevent B becoming settled in her new environment by the date on which these proceedings were started. At various points, the mother had clearly considered returning to Portugal, and in 2024 went as far as signing an agreement to do so. But by the time the proceedings were started, despite her previous prevarication and changes of mind, the mother had formed the clear intention of living in this country. The fact that the parties were conducting negotiations, and that at one point appeared to have agreed that the mother and B would return to Portugal, did not prevent B becoming settled in her current environment by March 2025. I accept Ms Guha’s submission that that the judge focused excessively on the details of the communications passing between the parties and attached insufficient weight to the extensive evidence about the child’s settled life in this country.

By March 2025, B had not merely adjusted to her present surroundings. Physically and psychologically, she was integrated into an environment which, if not permanent, was “long-term” rather than “transient”. That environment, as described in detail in the mother’s statement, included a home in this country where she attended nursery, took part in other activities, and established relationships in a wide social and family network which included contact with her father and paternal family. In all the circumstances, I find that the evidence demonstrated that B was settled in her new environment and that the judge’s contrary conclusion was wrong.

Turning to the exercise of the discretion under Article 12, the factors limiting the scope of the discretion identified by Baroness Hale in Re M (Zimbabwe) were plainly relevant. By March 2025, this was manifestly not a "hot pursuit" case. The central object of the Convention after a child has been abducted, namely securing a swift return to the country of origin, was no longer possible. As a result, it could no longer be assumed that Portugal was the better forum for resolving the dispute between the child’s parents as to how her long-term welfare needs should be met.

Standing back and looking at the circumstances faced by the judge, there was decisive force in the submissions on discretion made to him by Ms Guha. B had come to this country when only nine months old and was by the date of the hearing aged 3 ½. The father had known of her whereabouts at all times and delayed in bringing his remedy pursuant to the Hague Convention for two and a half years. Although the judge concluded on balance that the mother would be able to formalise her right of residence in Portugal, the expert evidence given by Mr Perry da Câmara, which the judge accepted, clearly showed that the process of securing her right to reside in Portugal would not be straightforward and would involve some delays and restrictions in the interim. On any view of the expert evidence, the outcome is far from certain and the process would take some time, during which the mother’s right to work and claim benefits and, possibly, travel freely between the two countries would be restricted. It is inevitable that these uncertainties and difficulties would have an impact on the mother and therefore on the child’s welfare. The judge was unduly dismissive of these difficulties when considering the exercise of the discretion. Similarly, although he concluded that there was not a risk of a significant deterioration in the mother’s mental health if required to return to Portugal, he accepted that there would be a “cumulative” and “negative” effect on her wellbeing. He considered that these factors were outweighed by the father’s assertion that he would be unable to visit this country as frequently in future as he had in the intervening two and a half years. But this was an evaluation which should have been carried out after a full and thorough welfare enquiry, not on the basis of assertions and very limited evidence as part of the summary process in abduction proceedings. It was inappropriate and wrong in principle to order the return of the child without a full welfare analysis.

There is, in my view, a further error in the judge’s analysis and exercise of the discretion. In exercising his discretion, the judge (at paragraph 84) attached weight to what he described as “a separate policy point” that “a party should be allowed to enter mediation and/or use other forms of non-court dispute resolution without fear that the time taken in seeking to resolve matters outside of court may be used against them.” I do not agree with the judge’s assertion that the merits of a settlement defence and/or the arguments in relation to the non-exercise of the discretion are not strengthened by a significant delay in issuing proceedings for the summary return if the parties were engaged in dispute resolution processes during that period. The fundamental principle of the Convention is the swift return of an abducted child to her country of habitual residence. Any significant delay is relevant to the exercise of the discretion to return under the Convention. The reasons why the left behind parent has refrained from issuing proceedings promptly are also relevant. It is of course right that the overriding objective and other provisions of the Family Procedure Rules encourage parties to resolve disputes without resorting to litigation. But the judge’s assertion that a delay of over two years cannot as a matter of policy strengthen the arguments against the exercise of the discretion if the parties were engaged in non-court dispute resolution processes about the child’s future care and welfare is inconsistent with the underlying principles of the Convention as explained above.

For those reasons, I would uphold the mother’s appeal on grounds 1 and 2. I conclude that the judge was wrong to find that, at the date on which the proceedings were started, the child was not settled in her new environment and also wrong to conclude that, had he reached the contrary decision, he would nevertheless have exercised his discretion to order her summary return to Portugal.

It is fair to say that the focus of Ms Guha’s appeal was principally on the Article 12 issue, rather than Article 13(b). In those circumstances, and in view of my conclusions on the Article 12 issues, the arguments under Article 13(b) can be taken more briefly.

Ms Guha submitted that the judge wrongly determined that the cumulative elements of the mother’s defence did not cross the Article 13(b) threshold of harm. In particular, she argued that he was not entitled on the evidence to discount the mother’s allegations of coercive and controlling behaviour in assuming that the allegations are “mostly situational to the parties’ relationship”. Ms Guha described this is a flawed and speculative opinion which had not been ventured by the Cafcass officer. It demonstrated a misunderstanding of this form of abuse, and the fact that the risk will subsist post-separation as long as there is an imbalance of power between the parties. The mother’s statement clearly explained why she continued to be fearful and anxious of the father’s controlling behaviours following their separation. Ms Guha submitted that the mother’s case that she was still a victim of ongoing abuse was not undermined by the fact that at one stage she proposed dividing the time that she and B would live between this country and Portugal. She further contended that the judge’s treatment of the psychological evidence, which established that a return to Portugal would have a negative effect on the mother’s wellbeing, was insufficiently considered by the judge as part of the cumulative picture. She also argued that the judge had failed to give due consideration to the impact on the mother of the restrictions which the father was seeking to impose on travel to this country in the first year after B was returned to Portugal.

Ms Guha further submitted, under ground 5, that judge’s treatment of the father’s proposed undertakings was flawed. In particular, given the context of a history of coercive control, she submitted that he was wrong to adopt the father’s proposals about accommodation in a property owned by his family. As a minimum, he should have accepted the mother’s case that the risk of domestic abuse could not be ameliorated unless the father provided her with funds for independent accommodation pending the resolution of her application for a residence permit given that the mother has no right to work or claim benefits during this period. Furthermore, in a case where there was no evidence that the undertakings offered to an English court by the father would be recognised or enforceable in Portugal, the court should have acceded to the mother’s case that the order be registered in Portugal as a condition precedent to a return to ensure that there are no issues with enforceability. Ms Guha submitted that he took an unjustifiable leap of faith that he could rely solely upon the father’s assurances in a case where such serious allegations of abuse were levelled against him. She cited the observations of Cobb J (as he then was) in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415 at paragraph 55 and in the 2023 Practice Guidance provided by the President of the Family Division at paragraph 3.11:

“There is a need for caution when relying on undertakings as a protective measure, and undertakings that are not enforceable in the courts of the requesting State should not be too readily accepted. There is a distinction to be drawn between the practical arrangements for the child’s return and measures designed or relied on to protect the child. The efficacy of the latter will need to be addressed with care.”

I am unpersuaded by these submissions that there are grounds on which this Court could properly interfere with the judge’s conclusions on the Article 13(b) defence. On this issue I accept the arguments put forward by Mr Gupta that the judge carefully and correctly applied the established legal principles to the facts and reached a conclusion that was plainly open to him on the totality of the evidence, including the extensive history of messages passing between the parties and the mother’s various proposals put forward in discussions between 2022 and 2024 which envisaged her and B spending significant periods of time in Portugal. The judge explained carefully why the points raised by the mother, taken individually and collectively, were insufficient to cross the high hurdle imposed by Article 13(b). Furthermore, as Mr Gupta pointed out, the judge’s acceptance of undertakings in this case was in line with the approach to protective measures advocated by this Court in previous authorities and other first instance cases, where both States are signatories to the 1996 Hague Convention. I agree with Mr Gupta that the judge properly held that the undertakings offered by the father amounted to measures pursuant to the 1996 Hague Convention, and are therefore recognisable by operation of law. He was therefore entitled to conclude that the undertakings did not need to be reflected in a Portuguese order prior to return.

I therefore reject the mother’s grounds of appeal 4 and 5. For the reasons given above, however, I would allow the appeal on grounds 1 and 2 and set aside the judge’s order that B be summarily returned to Portugal.

I agree.

I also agree.