![CA-2025-001871 - [2025] EWCA Civ 1382](https://backend.juristeca.com/files/emisores/logo_Sjvxvlx.png){kind=logo}
The appeal
The appeal
The mother puts forward five grounds of appeal:
The judge misdirected himself in the application of the legal principles governing the Article 12 defence of settlement to the facts of this case. His finding that the child is not settled in this jurisdiction is wrong.
His decision to exercise his discretion to order a summary return is not rationally supportable.
He misconstrued the expert evidence in respect of the mother’s immigration position in his approach to both defences in the following respects:
he arrived at an irrational conclusion that the court could be satisfied on balance that the mother will be able to formalise her right of residence in Portugal; and/or
he failed to weigh in the balance the impact upon the child and her primary carer of the likely protracted delay in a decision being made upon the regularisation of the mother’s immigration status.
He erred in his analysis of the Article 13(b) defence in:
his determination that the abuse allegations made by the mother against the father with respect to domestic abuse and/or sexual abuse do not meet the threshold of Article 13(b);
his assessment of the cumulative aspects of the mother’s case; and
failing to evaluate the impact upon the child and her primary carer of the father’s refusal to allow the child to visit her family and social network in this country for a minimum period of 1 year if ordered to return to Portugal.
He adopted a flawed approach in his evaluation of the efficacy and effectiveness of the father’s proposed undertakings and failed to ensure that the undertakings would be enforceable in Portugal prior to a return to ameliorate the Article 13(b) risk of harm.
The principal focus of the argument at the appeal hearing was on the judge’s treatment of the Article 12 defence, which lies behind grounds 1, 2 and, to a minor extent, 3. I shall consider the submissions on that issue before turning to consider, more briefly, his treatment of the Article 13(b) defence, which lies behind the other grounds.