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

The judge started his judgment by summarising the factual background (paragraphs 1 to 18). He referred to the recent allegations and explained his reasons for disregarding them (paragraphs 19 to 25). He explained the circumstances in which only the immigration expert had given oral evidence (paragraphs 26 to 28). At paragraph 29-30 he made the following observations:

“29.

The facts of this case are unusual. F has travelled to this country on 33 occasions since December 2022 to spend time with B. M has also travelled back to Portugal with B on six occasions, the longest period of time being for three and a half months from 6 December 2023 until 1 March 2024 with a further extended period in Portugal from 28 September 2024 until 9 November 2024. B has homes with both parties in both countries. On Mr. Gupta and Ms. Gaunt’s analysis M has spent approximately 39% of her life in Portugal.

30.

It is no doubt as a result of this travel between the two countries that it is common ground that B has a close relationship with both of her parents. I was particularly struck by the following references in the Cafcass Report:

‘[24] … I did not observe any tension or vigilance from [B] towards her parents during the handover. This suggests that she is used to calm and civil exchanges and does not feel anxious about being in both parents’ presence. This is in sharp contrast to many children of separated parents who are frequently uneasy and fearful about interactions between their parents.

[25] … She presents as a child who has her parents’ emotional permission to enjoy the time she spends with the other, as well as to share any worries about this. This suggests that [B’s] parents each positively promote her relationship with the other.’”

The judge summarised the issues as set out above before turning to Article 12. He considered the conflicting authorities on whether “now” in Article 12(2) meant the date of the issue of the proceedings or that of the final hearing. He expressed a view as to which interpretation he preferred before saying that it was academic on the facts of this case because, as both parties accepted, it made no difference to the outcome of the case before him. In passing, I record that neither party has suggested that this issue falls to be decided on this appeal. He then cited a number of authorities, including Williams J’s summary of the applicable principles in AH v CD quoted above. At paragraphs 50 to 52, he summarised the parties’ submissions on Article 12.

At paragraphs 54 to 70, the judge then set out his analysis of the Article 12 issue. As this lies at the heart of the appeal, it is necessary to quote his reasoning in some detail:

“54.

I agree with Mr. Gupta and Ms. Gaunt when they say in their Position Statement at paragraph 19 that Ms. Veitch’s Cafcass Report is balanced and leaves the question open for the court. I further agree that the report does not lean towards a conclusion that B is settled, only going as far as to say at paragraph 41 that there are factors which support that B [emphasis added by judge] ‘is becoming physically settled’ in this country – living in the same house for 23 months and regarding it as her home, knowing her neighbours and having become part of the local community, being familiar with the local area, having developed a close friendship with a particular local child and living near her maternal family - and at paragraph 53 that ‘some’ factors ‘point towards [B] being somewhat settled in [this country]’.

55.

In my judgment B is not settled in this jurisdiction. In reaching this conclusion I agree with Ms. Veitch at paragraph 53 of her report that “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”.

56.

There is no doubt that M had not communicated to F an unequivocal intention permanently to reside in this jurisdiction with B until recently. This is clear from:

(a)

the two lengthy periods of mediation between the parties between December 2022 and March/May 2023 and between August 2023 and December 2023/January 2024. Mediation would not have taken place if M had informed F of an intention permanently to reside in the jurisdiction as otherwise F would have issued proceedings earlier …

(b)

the many WhatsApp messages and emails sent by M to F between October 2022 …. These record M repeatedly informing F she had no intention of staying in this country long-term and/or that she and B would be moving back to Portugal; and

(c)

the written agreement signed by both parties on 15th October 2024, reached after several months of discussion and negotiation, and which stated B would return to live in Portugal from January 2025.

57.

On F’s behalf it is said what M said to F is also likely to be what was understood by B to be the case. I consider the position is more nuanced than this….

58.

…B has either (i) received a consistent message from both parents that she may (if not will) be returning to Portugal in which case she will understand her current situation is or may be a temporary one; or (ii) she has received different messages from each of her parents, in which case she is likely to feel a sense of confusion. Either way, B has not received a clear and consistent message that this country is and will be her permanent home. I agree that B will therefore feel ‘in limbo’ and in my view cannot as a consequence have a sense of physical, psychological and emotional settlement here (as distinct from her feeling settled with M)….

59.

In this context I accept F’s evidence at paragraph 5 of his Statement of 2nd May 2025 that B has said to him “when am I going to Portugal?” …

60.

B’s young age is also a relevant factor in this analysis: she is not in full-time education and is not of an age to have established close ties with anyone but her parents. As set out above it is common ground that her young age means that she will derive her sense of emotional and psychological settlement from her relationship with her parents more than from any particular location. Further, as Ms. Veitch stated at paragraph 15 of her report, B “has yet to establish friendships at nursery.”

61.

I also conclude a lack of settlement in this country will have been compounded by B’s six visits to Portugal (one of which was three and a half months long) and visiting F’s home in Portugal….

62.

As was submitted on F’s behalf, the factors which would in theory point towards B being settled in this jurisdiction are that she has resided in the same property for 23 months, has developed some connections within the community and is living close to members of her maternal family. This does not constitute the requisite physical integration and stability for the purposes of Article 12, particularly when 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.

63.

I also conclude from M’s WhatsApp messages and her emails to F that she herself had not considered remaining in this jurisdiction to be a long-term stable arrangement until relatively recently. …. I am satisfied that given the length of time over which these messages were sent they were genuine. I accept it is likely that B will have picked up on M’s lack of settlement. In any event it cannot be that B has become settled when M is not.

64.

Ms. Guha submitted orally that from the time M arrived in this country she “knew in her heart she wanted to stay”. F does not believe this and I conclude it was not the case. However, as Mr. Gupta submitted if M was being deliberately clandestine and/or deceitful she should not be able to benefit from the same.

65.

I also conclude the agreement signed in October 2024 reflected M’s genuine intentions at that time ….

66.

I am satisfied that even though M may not be fluent in Portuguese she understood the material provisions of the agreement ….

67.

I am fortified in my conclusion that M’s intentions were genuine by the fact that she rented a property in Portugal in October 2024 and what she thereafter said to F about it. In my view securing this property was M giving effect to the parties’ negotiated agreement….

68.

It is relevant when considering the property that M has rented in Portugal and her now apparent criticisms of it that, as described by the Cafcass Officer at paragraph 28 of her report ….There are therefore at least some similarities between the two properties.

69.

Having reached this conclusion I do not need to resolve the factual dispute as to whether M has now moved most of her and B’s belongings to her Portuguese property. F states she has relying inter alia on a photograph dated (I believe) 31st October 2024 which he states shows M having towed a caravan to Portugal containing her belongings. M states the caravan contained only what she needed for that trip and she left no belongings she had brought from this country there and all that is now in the property is what M left behind when she left Portugal in 2022 and what was then put into storage.

70.

For completeness I should record that in reaching my conclusion on settlement I accept (as was said on M’s behalf) that when she acknowledged to Ms. Veitch (as recorded at paragraph 49 of her report) that she ‘didn’t intend for this to become our home,’ and that relocating to [this country] was ‘never meant to be permanent’ this was not (as F said) a “concession” by M but was a reference to her initial intentions only.”

After reaching that conclusion, the judge proceeded to consider whether, had he concluded that B was settled in this country, he would have nonetheless exercised his discretion to order her return to Portugal. He cited several passages from reported authorities, including Baroness Hale’s observations in paragraphs 43-44 and 47 of Re M (Zimbabwe). He then set out the arguments advanced on either side on this issue.

On the father’s side, these included that:

On the mother’s side, it was argued that:

The judge then considered the evidence about the mother’s immigration status in Portugal and concluded (at paragraph 80):

“although I acknowledge the grant of a permit is discretionary I am satisfied that on balance M will be able to formalise her right of residence in Portugal. I therefore do not consider that this issue weighs with any great significance in the balance.”

He then considered the evidence about the mother’s mental health, and concluded:

“while a return may have a cumulative impact on M’s wellbeing, there is no clear evidence that it would have such a detrimental impact on B and in particular M’s ability to parent her, especially when compared to the very significant impact on B of not being able to enjoy such regular time with F. I therefore do not consider that this evidence weighs significantly in the balance.”

The judge then (at paragraph 84) referred to what he described as “a separate policy point that arises on the facts of this case”, namely the fact that “the parties were engaged in mediation as to if (not simply when) B should return to Portugal”. He held:

“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 (whether as part of the defence of settlement or otherwise) should resolution in a non-court forum not ultimately be achieved and court proceedings thereafter issued. It would be contrary to the court’s “duty” pursuant to FPR 2010 Part 3 to consider non-court dispute resolution and likewise contrary to the overriding objective pursuant to FPR Part 1 to deal with cases “justly” if a court acceded to a submission made by a respondent to an application for summary return that the merits of a settlement defence and/or the arguments in relation to the non-exercise of the discretion were strengthened because court proceedings were not issued earlier when this was because the parties were engaged in non-court dispute resolution.”

The judge added that he accepted the Cafcass officer’s observation that the fact that B had not yet attended a nursery for a significant period meant she was better placed to adapt to a further change in circumstances and that she would, “to a great extent, adapt and settle to a change in circumstances, provided she was in the mother’s care”. He then set out his conclusion on the exercise of his discretion in these terms:

“87.

I accept that as stated in Re M (Zimbabwe) the further away one gets from a speedy return envisaged by the Convention, the less weighty its objectives are.

88.

However, taking all the foregoing into account, and my view that it is inherently unlikely to be feasible for F to be able to continue to travel to this jurisdiction as frequently as he has done so far for an indefinite period, if I had reached the conclusion that B was settled in this country, then on the (very) unusual facts of this case – and which include that (i) it is common ground that B benefits greatly from her relationship with F; and (ii) she already has a home in Portugal with both of her parents - I would have exercised my discretion to order her return to Portugal ….”

The judge then turned to the Article 13(b) defence. Between paragraphs 89 and 101, he cited extensively from the case law, including the passages from Re IG and E v D (Return Order) quoted above. He recorded that the mother had raised concerns in respect of domestic abuse, housing, her immigration position and the effect on her mental health, which he considered in turn, adding that he was conscious of the “need to evaluate their cumulative effect”. On the issue of domestic abuse, he summarised the mother’s allegations, acknowledged their seriousness but concluded that, even taken at their highest, they did not constitute a grave risk that the child would be exposed to harm or placed in an intolerable situation if she were returned. He accepted the submission made on the father’s behalf that the allegations were “mostly situational to the parties’ relationship”. He also took into account certain statements made by the mother which contradicted her assertion of intolerability and “the parties’ frequent communications, interactions and handovers without issue”. He considered the housing position, noting that the mother had rental accommodation in Portugal, and immigration, referring to his earlier conclusion at paragraph 80 quoted above. As to the mother’s mental health, he concluded that, at most, the evidence suggested that a return to Portugal “would have a negative effect on M’s wellbeing” and “[did] not support a conclusion that there is a risk of a significant deterioration in M’s mental health on a return, or of M becoming so psychologically disabled so as to mean that she would not be emotionally and physically available to B.” He also concluded that, considering the allegations as a whole, “their cumulative effect does not constitute a grave risk of harm to B or otherwise place her in an intolerable situation.”

In the alternative, he held that, if he was wrong reaching that conclusion, he would be satisfied that the protective measures offered by the father were sufficient to mitigate the harm. He noted undertakings offered by the father in his statement and additional undertakings proposed by the father during the hearing. He indicated that he would accept these undertakings, with additional amendments set out at paragraph 116 of the judgment. As recorded in the order made following the hearing, the undertakings were as follows:

“(i)

Not to support or instigate any criminal or civil proceedings for the punishment of the respondent arising out of the removal of the child from country and the subsequent retention of the child in England and Wales;

(ii)

Not to use or threaten abuse against the respondent, nor encourage anyone else to use or threaten abuse against the respondent;

(iii)

Not to attend at the airport when the respondent and the child land in Portugal;

(iv)

Not to remove the child from the respondent’s care, save for the purpose of any agreed contact between the parties or ordered by the Portuguese court;

(v)

To pay for economy tickets for the respondent and the child to return to Portugal (to include one hold-luggage suitcase each);

(vi)

Commencing on 15 July 2025, to pay €800 to the respondent per month as financial support, to be paid in monthly instalments directly to the respondent’s bank account, for a maximum period of 1 year or until the respondent obtains a residence permit for Portugal, whichever is sooner;

(vii)

In the event that the respondent confirms that she wishes to reside in the property of the applicant’s cousin … (instead of the property she is currently renting …), the applicant shall fund the same for a maximum period of 1 year or until the respondent obtains a residence permit for Portugal, whichever is sooner, and to make payment of the deposit and the first month’s rent prior to the respondent’s return to Portugal;

(viii)

To provide the respondent with a car for a maximum period of 1 year or until the respondent obtains a residence permit for Portugal, whichever is sooner. The applicant will make necessary arrangements for the car to be waiting for the respondent on the date of the arrival in Portugal;

(ix)

Not to enforce the bill sent to the respondent in 2024 of c. €3,500 nor seek to offset any/all of the same against the sums owed for maintenance and accommodation;

(x)

To meet the costs (if any) of the respondent’s legal representation in respect of her application for a residence permit in Portugal, up to a maximum of €3,000, and to pay those costs directly to the lawyer. The applicant will make such payments as necessary prior to 30 June 2025;

(xi)

To apply for a court welfare hearing in respect of the child as soon as possible after her return;

(xii)

Not to attend the respondent’s place of residence without prior agreement;

(xiii)

To contribute towards any nursery fees in relation to any nursery that the applicant and respondent agree on; and

(xiv)

To fund health insurance for the respondent and the child for 1 year with the premium paid directly to the provider, with the respondent to provide proof of that policy having been taken out and funded before the child’s return.”

The judge recorded that it was said on the mother’s behalf that it was significant that there was no evidence as to the extent to which the Portuguese court would enforce these undertakings or make mirror orders reflecting the undertakings. He observed, however, (paragraph 121):

“I am satisfied that this is a case where F can be trusted as he is mindful of the need for B to have the benefit of a safe and secure environment and of the importance of M having the same in order to be able to meet B’s needs.”

He added (at paragraph 122):

“My acceptance of F’s undertakings (which constitute ‘measures’ for the purpose of Article 23 of the Hague Convention 1996 and are therefore recognisable by operation of law in Portugal) will therefore be sufficient protection. I am satisfied on the facts of this case that this satisfies the need for the protective measures to be effective (which is not confined solely to the issue of enforceability).”

On that basis, he concluded that his acceptance of the undertakings provided sufficient protection and that it was unnecessary for the undertakings to be reflected in an order of the Portuguese court prior to the child’s return.