FD25P00187 - [2025] EWHC 2629 (Fam)

By their answer the paternal grandmother and the paternal aunt assert that Y has strongly expressed a clear objection to returning to Brazil and that, at the age of 8, Y possesses sufficient maturity and understanding to have her views taken into account. The respondents do not seek to rely on the objection exception under Art 13 in respect of Z. With respect to Y, however, I am satisfied on balance that what Y has said does not amount to an objection by a child who has attained an age and degree of maturity at which it is appropriate to take account of her views for the purposes of Art 13 of the 1980 Hague Convention. Even had my conclusion been to the contrary, in circumstances where that objection is not determinative of the application or even presumptively so, I would not have been satisfied that the court should exercise its discretion to give effect to Y’s objection.

The gateway stage with respect to the objections exception under Art 13 is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that Y objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views in that regard. Whether Y objects to being returned is a matter of fact, as is her age. Y must be shown to have expressed more than a mere preference and her objection must be to returning to the country of habitual residence. Art 13 does not constrain a court from considering any objections by Y of returning to her mother rather than to returning to particular circumstances in Brazil.

The Children’s Guardian spoke to the children on three occasions, the second occasion being the one on which the Guardian concentrated most closely on the wishes and feelings being expressed by the children with respect to the question of returning to Brazil. Y dictated to the Children’s Guardian a letter to the court, included in the Guardian’s report, in which she stated that she wants to live here and does not want to live anywhere else and that she does not want to go to Brazil. With respect to Y’s views of Brazil, the Children’s Guardian reports as follows:

“[38] About Brazil, Y told me, ‘I remember my cousins, I remember my auntie cooking us dinner. And I remember the school. It’s ok but I love school here, it’s better’. Y lived in a house which was ‘not too big or small just average’. She shared a room with her sister, and her cousins lived in the home with them too. Y recalls getting along well with everyone there.

[39] When asked how she felt about leaving Brazil, Y took some time to answer and required clarification through the interpreter. Once she understood the question, she said, ‘I was upset actually because I wanted my cousins and my uncle to come with me, but they couldn't. I don't know why’. Y looked dejected when recounting this. She said she remembers that she, Z and their grandmother travelled first and left her cousins behind, which was hard for her because she missed them and felt very sad. Y talks to her cousins from where they are living in Egypt, but this does not really help her feel better about missing them. I asked if she still really misses them and she nodded, sadly.”

And:

“[46] Whilst Y wants her father to take on her care, and wants to live in a house, she is also strongly opposed to any change in her current circumstances. Even when asked an innocent icebreaker about her dream holiday destination, Y staunchly said she does not want to go anywhere, she just wants to stay here. In my view, she has found the various changes of home, country, carer and school extremely disruptive and is craving consistency and normality – a stable home, and a parent looking after her.”

And:

“[50] Y’s expressed wishes and feelings are that she wants to stay in England, telling me, ‘I would love to stay here and live with my auntie and my grandma and my dad. And I would like to stay here not anywhere else’. Y’s reasons for wishing to remain in the UK are, ‘Because I have friends here that I like and teacher that I like and there are lots of lovely things’.

[51] When Y was gently reminded that she may return to Brazil, she expressed her views in even stronger terms, saying, ‘No, I am not going, I don't want to go’. She said that if she had to go, she would ‘just run away’. When I explored her reasons for not wanting to return to Brazil, Y said, ‘There is nothing that scares me there, I just don't like it’. She did not have any specific worries or concerns about Brazil, or about anything else. In response to a question about when she feels safe, Y laughed and said, ‘there is nothing dangerous for me’. It is for the court to consider whether Y’s strong preference to remain in the UK, amounts to an objection to summary return in the meaning of the convention.”

As I have noted, it has been recognised that a child who has suffered an abduction will very often have developed a wish to remain in the “bubble of respite” that the abducting parent or relative will have created in the country to which the child has been taken. In this case, it is notable that Y states that she does not want to go anywhere and just wants to stay in England with her paternal grandmother and paternal aunt in the context of finding the various changes of home, country, carer and school extremely disruptive and craving consistency and normality. At this point, Y, and Z, have experienced two abductions which have seriously disrupted their relationship with the mother as their primary carer. They have had no direct contact with their father for an extended period of time. Within this context, their presence in this jurisdiction since June 2024, their schooling and their time with the paternal grandmother and paternal aunt constitute the only stability they have achieved for a considerable period of time and a preference to continue that stability is understandable.

Y did not express an objection to returning to Brazil of her own volition. Only when reminded by the Children’s Guardian that she “may return to Brazil”, did she express her views, in superficially strong terms, by way of an objection to going to Brazil and a threat of absconding if made to, saying, ‘No, I am not going, I don't want to go’. She said that if she had to go, she would ‘just run away’. Y’s letter to the court also stated that she does not want to go to Brazil. However, whilst on their face these responses are presented by Y in the terms of an objection, an examination of their foundations reveals an absence of strength, conviction and rationality that leads me to conclude her views are, at their highest, strong preferences.

The rationale that Y gives for her stated position comprises her love of school here, which she considers “better”, her not wanting to go anywhere and just wanting to stay here in the context of finding the various changes of home, country, carer and school extremely disruptive and craving consistency and normality, her having friends here that she likes, a teacher that she likes and there being “lots of lovely things”. When, frankly, the mother concedes in her statement that when she has asked Y whether she would like to return to Brazil, Y rationalises her negative response on the basis that she must stay with her aunt, who tells the children that she is their mother. Y offers no rationale for her views that centred in any way on Brazil. Y told the Children’s Guardian that there is nothing that scares her there, it is just that she doesn’t like it. She articulated no specific worries or concerns about Brazil, or about anything else. Indeed, when asked by the Children’s Guardian about when she feels safe, Y laughed and said, ‘there is nothing dangerous for me’. As such, none of Y’s stated rationale for her views is grounded in return to Brazil, either as a concept or in detail. In the circumstances, Y’s bare statement in response to the Children’s Guardian positing Y “may return to Brazil”, and the bare statement in her letter, have a foundation predicated entirely on things she likes in England rather than things she objects to about Brazil. This is properly characterised as a preference and not an objection.

With respect to maturity, the Children’s Guardian is satisfied that Y’s presentation and ability to express herself were suggestive of a cognitive ability consistent with her chronological age. Her school reports broadly support this view, with her attainment in some areas being in line with age-related expectations. However, the Children’s Guardian considered Y to have a simplistic understanding of the proceedings and the decisions that will be made about her appropriate to her age and level of understanding. This is consistent with Y being able to respond in bare terms when the Children’s Guardian put to her that she may have to return to Brazil, but being unable to articulate with strength and conviction a rationale any specific objection to returning to Brazil beyond a preference for the maintenance of the rather threadbare stability she and her sister have achieved in this jurisdiction.

Within the foregoing context, I am satisfied that the expression of Y’s wishes cannot be said to amount to an objection having regard to the strength, conviction and rationality of such an objection demanded by a proper interpretation of Art 13 of the 1980 Hague Convention. Even had I been persuaded to the conclusion that Y’s views amounted to an objection on a proper interpretation of Art 13 of the 1980 Hague Convention, it is plain on the evidence before the court that the resultant discretion would have fallen to be exercised in favour of nonetheless making a return order.

On the evidence before the court, I am satisfied that Y has been the victim of negative influence and pressure placed on her by her paternal family. As such, I am not satisfied that Y’s statements with respect to her mother are grounded in her lived experience of her mother’s care. This conclusion is reinforced by the relative ease with which Y returned to the care of her mother after an extended period during which efforts were made by the paternal family to undermine Y and Z’s attachment to their mother, to which I shall turn in detail below.

The Children’s Guardian, both in her report and during her oral evidence, gave impressive and persuasive testimony that tends to suggest the children have been the subject of negative influence by the paternal family. The Children’s Guardian noted that Y appeared careful not to include her mother in the list of family members she enjoys spending time with. When asked when she feels happiest, Y said ‘being with my family…but not my mum’ and answered the prompt, ‘I feel angry when…’ with ‘when I talk to my mum’. On more recent visits, Y’s resistance to speaking to or seeing her mother has hardened and she is described as pleading with the Children’s Guardian She pleaded with me, ‘I am asking you to help me to stop mum calling me’. Y told me she does not like or love her mother. She could not recall any positive memories of her (despite having been in the mother’s primary care for the vast majority of her life up until 2023 and not mentioning to the Children’s Guardian any negative issues as regards the time that she was in her mother’s care). When asked about when she was younger, Y said, ‘when I was a baby I only liked my auntie, I didn’t like my mum’. Y made these statements without any apparent ambivalence or guilt. The Children’s Guardian was struck by the consistent and unambiguous nature of Y’s negativity about her mother, Y wanting to make clear to the Children’s Guardian that she does not miss her mother.

The Children’s Guardian was also troubled by the fact that Y only seemed to consider her paternal family as her family, and that she appeared to be ‘rewriting history’ to exclude any memory of having had a positive relationship with her mother. In this context, the Children’s Guardian doubted stories told by Y in respect of adverse behaviour by the mother in the form of allegedly lying to Y about where she was going was also doubted by the Children’s Guardian:

“I was unsure if Y was telling me something from her own memory, or something she has learned about since. I found her description of her own actions – taking her mother’s phone, presumably surreptitiously, unlocking it and looking through it to discover where she had been - at a time when she would have been of around 5 years of age, difficult to accept at face value. The actions and intentions she described are far more complex and involved that those I would expect of a child of that age and developmental stage, towards a parent. The way in which she spoke about this, in a long narrative with few breaks, also had something of a rehearsed manner to it. I also felt it was inconsistent with Y’s first answer, which was that she did not remember much about when she used to live with her mother.”

In the foregoing circumstances, the Children’s Guardian notes that the reason Y gives for her views was grounded in an untruth about her mother, namely, “because she left us with her friend and went off”. That assertion is contradicted by a statement made by the paternal aunt to social services that “the mother wants the children returned to her care” and by the fact that the mother sought a custody order in Saudi Arabia and has pursued the children across the world following their abduction by the father and then by the paternal grandmother. These matters also lend the lie to the claim by the paternal grandmother to the UK immigration authorities, including in her Asylum Support Application Form, that the mother “had given up on her parental responsibility”. This was not true. The mother in fact had a valid custody order from the Saudi Court. In her report, the Children’s Guardian observes as follows regarding the conduct of the father, the paternal grandmother and the paternal aunt:

“[60] Having spoken with the respondent father, aunt and grandmother, I was struck that none of these family members were able to say anything positive about M. F in particular, was openly critical about her and all members of her family, calling them ‘alcoholics and drugs addicts…involved in people trafficking and prostitution’. If his dislike and disapproval of M is so notable when he is speaking with a professional in an interview context, when he is arguably on his ‘best behaviour’, I am concerned about what he may say in less guarded moments, such as on calls with the children. Indeed, F accepts that he has spoken to Y about the dispute with her mother and suggested to her that it is M’s fault, that he is not caring for Y and Z.

[61] PA and PG each say that they do not denigrate M in front of the children or share any information about proceedings with them. However, even if they are not overtly critical of M, an absence of positive messaging about her would also have an impact on the children’s opinion of her. It was notable that when asked about their views on direct spending time, both the children’s aunt and grandmother told me they did not object to this taking place, whilst holding neutral but stern expressions. If this is the way that the children experience their relatives talking about their time with their mother, they are likely to have received a subtle but clear message that seeing and spending time with their mother, is something their carers disapprove of, and that they should perhaps reject.”

The father concedes that he had told Y something to the effect that he is unable to visit her because her mother is preventing it, corroborating Y’s account to the Children’s Guardian:

“Y said her father has told her the reason he cannot come, is because of her mother. She said, ‘[Dad] said he can't come for now because he said mum doesn't want me to come and see you right now and also he is busy doing some work’. I gently told Y that now her parents live apart, they can each make their own decisions about things like coming to see her, and that her mother is not stopping her father from visiting. Y frowned and appeared very confused at hearing this.”

The Children’s Guardian considered it disappointing that the father struggled to recognise the adverse impact that sharing his views with Y in this way will have had on her emotional wellbeing, and on her perception of the mother. On the mother’s evidence, the effort to undermine the children’s relationship with her also included encouraging the children to lie about their location; the paternal aunt telling the children that she was their mother and telling Y that the mother abandoned her and no longer wants her, Y looking to her aunt for approval before responding; the father telling the mother to speak politely and not say "daughters” but "children” as a pre-condition of contact and telling the children that their mother had left them and did not love them; the paternal uncle exerting strict control over what the mother was allowed to say, including not to talk about feelings, not to ask them any questions about their location, and not to tell them that she was in Brazil.

Having regard to the evidence of the Children’s Guardian, I consider the mother’s evidence on these issues to be the more credible. The mother’s assertions about adverse influence are supported to a significant extent by the impressive written and oral evidence of the Children’s Guardian. Whilst I accept that the mother has conceded an incident of talking to the children in an inappropriate fashion, (Y relating that her mother “says things like, ‘'why don't you come and live with me, I have sweets and good food and I am going to buy you lots of things, come and live with me’”), she has admitted having done so and shown insight into the adverse impact on the children of such conduct.

In the foregoing circumstances, had I not concluded that Y’s expressed views do not constitute an objection to returning to Brazil for the purposes of Art 13 of the 1980 Hague Convention, I would have been satisfied that the fact that Y’s stated views are clearly a product of undue influence by the paternal family in the way I have described strongly mitigated against exercising the discretion to give effect to any objection. The Children’s Guardian maintained a clear position when under cross-examination that the children’s views of their mother were not their authentically held views and that the children’s views have been coloured by the influence and pressure placed upon them by the father, the paternal grandmother and the paternal aunt. The Children’s Guardian was clear that Y had been given the impression by the paternal family that she ought not to love her mother, which she considered a “hugely damaging” example of emotional harm by the paternal family.

I would also have concluded that refusing to return Y would not be consistent with her welfare, resulting as this would in her being in the care of neither parent with parental responsibility, remaining in the care of paternal relatives who have deliberately and negatively influenced Y against her mother in a bedroom of an asylum hotel in a country with which she has no links. In addition, there is no basis for refusing a return order in respect of Z on Art 13 and, for reasons I shall come to, the exception under Art 13(b) is plainly not satisfied in respect of either child. Accordingly, a return order is mandated in respect of Z and to exercise the discretion under Art 13 in respect of Y would have the result of separating the siblings.

In the circumstances, and for the reasons I have given, I am satisfied that the paternal grandmother, paternal aunt and father have not made out the child objections exception under Art 13 of the 1980 Hague Convention in circumstances where Y’s expressed views do not amount to an objection for the purposes of Art 13.