FD25P00187 - [2025] EWHC 2629 (Fam)

The mother was born in Saudi Arabia. Whilst she has never lived in Yemen, she remains a Yemeni Citizen by descent and has not acquired Saudi citizenship. She has a degree in accountancy. The father was born in Yemen and is a Yemeni citizen. The father moved to Saudi Arabia when he was 24 years old. The parents were married by way of an Islamic marriage ceremony on 19 July 2016. As I have noted, Y was born on 11 June 2017 and Z was born on 10 March 2020. At the time of the mother’s pregnancies the parents lived in Saudi Arabia but they made the decision that the children would be born in São Paulo, Brazil in order to obtain Brazilian citizenship. Y’s birth in Brazil enabled the mother to apply for Brazilian residency, which she obtained in 2017. Both children are dual Yemeni-Brazilian nationals.

The parents divorced on 16 May 2023 in Saudi Arabia. On 22 May 2023, the mother was awarded custody of the children by the Court of First Instance of the Civil Status in Jeddah. It is no longer disputed by the father or the paternal grandmother and aunt that that order gave, and continues to give, custody of the children to their mother. The decision of the first instance court indicates that the father was served electronically, as is now permitted in Saudi Arabia, but did not appear at the custody hearing. Notwithstanding his failure to attend, the father appealed that order but the Court of Appeal of Jeddah later upheld the custody order in favour of the mother.

The existence of the custody order made by the Court of First Instance in Jeddah directly contradicts the father’s assertion that the mother relinquished her parental rights and responsibilities towards the children within Saudi Arabia, and signed a document confirming this and conferring on him sole decision-making authority regarding the children’s care and their country of residence thereafter. In any event, the expert report directed by the court from Mr Ian Edge of Counsel confirms that the document has no official standing in Saudi Arabia and cannot, as regards the rights of custody over children, overrule or usurp the authority of the Sharia / Personal Status court in Saudi Arabia. Mr Edge confirms that the Saudi courts have frequently held that the issue of custody is not one to be decided by the parents of children because it is not a right of the parents but a right of the children and can only be decided by a court. The Court of Appeal of Jeddah province applied this principle when dismissing the father’s appeal against the custody order in favour of the mother as being without merit on 30 August 2023.

Following the decision of the Court of First Instance of the Civil Status in Jeddah giving custody to the mother the father removed the children to Yemen in the knowledge that the mother was to follow and collect the children from his care pursuant to the custody order of the Saudi court. However, before leaving Saudi Arabia the mother learnt from family members that the father had abducted the children to Brazil, it subsequently transpiring that he had arrived with the children in that jurisdiction on 23 June 2023. The expert report of Mr Edge confirms that the father had no right to move the children to Brazil without the consent of the Saudi Arabian court and without providing for the mother to be able to exercise her right of custody.

The father took with him to Brazil the mother’s Brazilian identification, resulting in the mother being unable to pursue the father and the children to Brazil. As a result, the mother had to travel to the Brazilian embassy in Turkey in order to obtain a visa for entry into Brazil. This meant the mother was unable to travel to Brazil to seek to recover the children from the father until June 2024. The mother arrived in Brazil on 1 June 2024 and took steps to contact the paternal family, who were residing in São Paulo, to secure the return of the children. The mother was informed by the paternal uncle, PU, that the children were no longer in Brazil. In the bundle is a document from court proceedings in Brazil that records that PU informed a Brazilian court officer executing a search warrant at his property that the children:

“...had been living with him for a few months, but their father...had come to collect them around a month ago, saying they were travelling to the United States.”

The statement of PU to the Brazilian court officer was not true. Whilst the father had flown to the United States on 14 July 2023 and has not returned to Brazil since, the children themselves in fact had not travelled with him and remained in Brazil at the time of the mother’s arrival. Further, the mother having issued court proceedings in the Family Court São Caetano do Sul, São Paulo, it transpired from a search ordered by the Brazilian court that the children had been removed on 3 June 2024, the day after the mother finally managed to enter the jurisdiction of Brazil. The mother subsequently discovered that this second abduction of the children was undertaken by the paternal grandmother who travelled with the children to England via Lisbon. In her asylum interview on 17 December 2024, the paternal grandmother confirmed that the father and the paternal uncle, funded the children’s abduction to the United Kingdom.

Whilst the father and the paternal grandmother and aunt had, prior to the final hearing, persisted in arguing that the paternal grandmother and aunt had parental authority in respect of the children pursuant to powers of attorney granted by the father, that assertion is no longer pursued. The addendum expert report of Mr Edge confirms that the father was not able to delegate any of his rights to any family member without the consent of the Saudi court, which would have required evidence that the mother’s right of custody was being upheld and catered for in that delegation. Mr Edge opines that the father could not validly make the grandmother the custodian of the children without the Sharia court’s permission. No party seeks to challenge the evidence of Mr Edge.

Following their arrival in the United Kingdom, on 20 June 2024, the paternal grandmother and the children were made the subject of a Home Office removal direction to Brazil on 23 June 2024 under s.10 of the Immigration and Asylum Act 1999. The paternal grandmother did not comply with the removal direction and instead made a protection claim for herself and for the children. This notwithstanding that the paternal grandmother did not hold parental responsibility for the children. Within these proceedings under the 1980 Hague Convention, and where the Secretary of State has confirmed that Brazil is not currently designated as a safe third country, the effect of that application is to delay the implementation of any return order the court may make until the conclusion of the asylum process. The children were placed with the paternal grandmother in one bedroom of a hotel housing asylum seekers and cared for by the paternal grandmother and the paternal aunt.

Whilst the mother attempted to contact the paternal grandmother and paternal aunt on WhatsApp, they initially blocked the mother’s number. During subsequent limited telephone calls, supervised by the paternal uncle, the children were encouraged to lie to the mother in an effort to make her believe that they were in the United States. The mother did not accept as true this story, and on one occasion one of the children complained that it was “cold in England” (the paternal aunt then intervening to tell her to say “in America”). The mother also came across a photograph of the children wearing school uniforms during the course of reviewing publicly available material and was able to identify their school

Within the foregoing context, the mother requested assistance from the Brazilian Federal Central Authority (hereafter “the ACAF”). With the assistance of the Portuguese authorities and Interpol, the ACAF established that the children were in England. The mother’s application for a return order under the 1980 Hague Convention was issued on 15 April 2025.

On 13 June 2025 the protection claims of the paternal grandmother and the children were refused. As I have noted, the paternal grandmother appealed that decision. In seeking to appeal the decision, the paternal grandmother failed to notify the allocated tribunal of the existence of these proceedings under the 1980 Hague Convention to enable the appeal to be expedited. No explanation for this omission has been forthcoming.

The mother has come to the United Kingdom for the final hearing. The Guardian observed contact between the children and the mother on 30 September 2025 at Cafcass’ central London offices with an Arabic speaking interpreter present. As I have already set out, on the first day of the final hearing the court was informed that the paternal uncle had arrived in the jurisdiction immediately prior to the commencement of the final hearing. Whilst he agreed to surrender his Brazilian passport, the whereabouts of his Yemeni passport could not be confirmed beyond his assertion that it was in Egypt (the paternal uncle asserting he had relocated to that jurisdiction from Brazil some two months previously but his own family currently being in Saudi Arabia). Given the evidence on the papers of the involvement of the paternal uncle in the second abduction from Brazil to the United Kingdom, and for reasons explained in my separate ex tempore judgment, I was satisfied that it was necessary to prevent changes in the circumstances relevant to the determination of the application for the purposes of s.5 by removing the children from the care of the paternal grandmother and paternal aunt and placing them in the care of their mother. The court has a Note from the Children’s Guardian detailing the children’s response to this change.