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

The subject of these proceedings is a girl, B, now aged rising 4. Her father is a Portuguese national, aged 44. Her mother is a British national, aged 34. They met in Portugal in July 2018. In 2019, the mother moved to Portugal and started living with the father.

On 18 December 2021, the mother gave birth to B. According to the mother, however, by that stage her relationship with the father was in difficulties as a result of the father’s coercive conduct towards her.

In September 2022, when B was aged 9 months, the mother brought her to this country to visit her family in this country. It is common ground that it was agreed that the mother and B would remain here for about a month, although no date for their return was fixed. On 3 October 2022, the mother informed the father that she had decided to remain in this country with B for a longer period. It has not been contested in these proceedings that, at the date of the mother’s retention of B in this country, the child was habitually resident in Portugal and that the retention was in breach of the father’s rights of custody and thus wrongful under Article 3 of the Hague Child Abduction Convention.

Initially, the mother and B lived in a rented property next door to friends. In June 2023, they moved to a longer-term rental property in this country, where they are still living.

Over the next two years after B was retained in this country, the parties conducted extensive discussions and negotiations about the child’s future, including two processes of mediation. The father did not take any proceedings for the summary return of B to Portugal.

The father visited this country on a number of occasions, and had unrestricted contact with B. The mother and B also visited Portugal on several occasions, on one occasion staying for three months.

On 15 October 2024, the mother signed an agreement setting out future care arrangements on the basis of B returning to live in Portugal from January 2025. On 13 November 2024, this agreement was lodged with the Portuguese court with a request it be converted into an order. In December 2024, however, the mother withdrew from the agreement and started proceedings in the local family court in this country seeking a child arrangements order under s.8 of the Children Act 1989 that B would live with her. It was her proposal that she and B would spend four months each year living in Portugal. Her application was listed for a FHDRA in March 2025.

On 14 February 2025, the father received notice from the Portuguese court that the mother had withdrawn from the agreement reached in the previous October. On 13 March 2025, nearly two and a half years after B was wrongfully retained in this country, the father filed an application under the Hague Child Abduction Convention seeking B’s summary return to Portugal.

At a case management hearing, the proceedings under the Children Act were stayed pending determination of the child abduction claim. Directions were given for a report by an officer of the Cafcass High Court team as to whether B was settled in this country. At a further hearing, the mother was granted permission to instruct an expert in Portuguese immigration law and a psychologist, in each case on a single joint expert basis.

In her Answer filed on 14 April 2025, the mother indicated that she was intending to rely on three defences to the father’s application for summary return – settlement under Article 12, acquiescence under Article 13(a), and grave risk of harm under Article 13(b). Subsequently, however, she informed the court that the defence of acquiescence would not be pursued.

The written evidence before the judge consisted of (a) two statements each from the parties, (b) an immigration report, and responses to supplemental questions posed by the parties, prepared by the SJE in immigration law, Mr João Perry da Câmara, (c) a psychological report about the mother, prepared by Mr Alexander Marshall, and (d) the Cafcass report from Ms Daisy Veitch of the High Court team.

The advice given by Mr Perry da Camara included the following observations:

On the issue of settlement, Ms Veitch reached the following conclusion:

“52.

Determining defences in Hague Convention proceedings, is a matter of fact to be established by the trial judge. The court may be assisted by the factors identified observed during my assessment, some of which point towards B being somewhat settled in [this country]. She has spent a notable amount of time living in her current home and neighbourhood and is part of a local community of friends and neighbours. She has access to healthcare and has started attending nursery, albeit very recently. There is a pattern to daily life to which she has become accustomed, which includes spending time with her maternal family and the involvement of her father in her life, despite the distance he lives from B.

53.

Comparatively, what B has been told by her parents about what to expect from her future is contested, but to my mind is instrumental in establishing the extent to which she is emotionally and psychologically settled in this country. If B has been led to believe that she would be returning to Portugal, it is difficult to imagine that she has been able to consider her current home a permanent one until very recently.”

In addition, the court was provided with an email from the Cafcass officer reporting that social services had received a referral from B’s GP as a result of recent statements made by B which might have indicated that she had been sexually abused by her father. Those allegations were denied by the father and not pursued by social services, nor relied on by the mother at the hearing. The judge therefore did not take them into account when reaching his decision.

At the hearing on 5 and 6 June 2025, the issues, as summarised by the judge in paragraph 31 of his judgment, were:

“(a)

whether B is now settled in her new environment in accordance with Article 12;

(b)

whether a return order would expose B to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation contrary to Article 13(b). I am asked to consider a range of possible protective measures; and

(c)

if either or both of the ‘exceptions’ or ‘defences’ are established whether I should exercise my discretion to order a return.”

Oral evidence at the hearing was given only by the immigration law expert. A note of his evidence was agreed for the purposes of this appeal. Two points of relevance arise from the note. First, in cross-examination on behalf of the mother, he agreed that the standard criteria for granting a residence permit included six months of continuous residence immediately prior to the application and that there may be difficulties in persuading the authority to exercise their discretion to waive this requirement in the mother’s case. Secondly, asked on behalf of the father whether he was optimistic about the mother being granted a fresh permit, in the event of an order by the English court for summary return, as the child was a Portuguese national and with the father offering financial support, he replied “‘optimistic’ [is] difficult because it is a question of evaluation. By nature I am always pessimistic ….”

At the conclusion of the hearing at first instance, judgment was reserved. A draft judgment was then circulated to the parties and formally handed down on 4 July. By the order made at a hearing on that day, the judge ordered the mother to return B to Portugal by 18 July 2025, and made a series of ancillary orders to facilitate the return. The return order was made on the basis of protective measures set out in a series of undertakings appended as an annex to the order.

On 11 July, an application to the judge for permission to appeal was refused, but the order was stayed until 14 days after the filing of the notice of appeal to this Court. That notice was filed on 30 July and on 8 August Moylan LJ granted permission to appeal and stayed the return order pending determination of the appeal.