FD25P00187 - [2025] EWHC 2629 (Fam)

With respect to Art 13(b), I am also satisfied that the evidence in this case does not reach the threshold at which the court is required to consider whether there are in place protective measures to protect the children from a grave risk of physical or psychological harm or otherwise intolerable situation.

The Art 13(b) Guide to Good Practice, at paragraph 40, contains perhaps the clearest description of the court’s task under Art 13(b), and one that is consistent with the approach of the Supreme Court in Re E. As such, the court must consider whether the assertions made on the evidence by the paternal grandmother and the paternal aunt and by the father are of such a nature and of sufficient detail and substance that, if true, they would constitute a grave risk. Having done so, I am satisfied that the evidence is lacking in detail and substance to an extent that enables me confidently to discount the possibility that the allegations made by the paternal family give rise to an Art 13(b) risk.

The answer of the paternal grandmother and paternal aunt contends that returning the children to the jurisdiction of Brazil would expose them to a grave risk of physical and psychological harm by reason of the following:

In addition to these matters, at this hearing the paternal grandmother and paternal aunt have contended that Y’s hostility towards her mother and desire to remain with the paternal grandmother and paternal aunt present a grave risk of psychological harm if her objections, which I have dealt with above, are disregarded.

It is frankly perverse for the father, paternal grandmother and paternal aunt to seek to rely on the unlawful situation they created to seek to ground the exception under Art 13(b). However, and more fundamentally, the assertions made by the respondents in respect of Art 13(b) are undermined by the reaction of the children to having direct contact with the mother after an extended absence and the reaction of the children of being moved to the care of their mother on the first day of the final hearing.

It is the case that the children have been in the continuous and primary care of their paternal grandmother and aunt since they were abducted from Brazil in June 2024. However, having regard to the conclusions of the court set out above regarding the undue influence exerted by the paternal family on the children, and the fact that the abduction from Brazil led to the children living in a bedroom in a hotel for asylum seekers, it is not the case that it can be confidently said that the paternal grandmother and paternal aunt provided stability, emotional support, and a secure environment. More fundamentally, I am satisfied that the evidence of the children’s response to the resumption of direct contact with the mother upon her arrival in this jurisdiction, and their demonstrated ability to move with relative ease back into their mother’s full time care undermines the assertion of the paternal grandmother and paternal aunt that children are openly hostile towards the mother and express a lack of trust, that a “forced” reunification would represent a profound emotional shock, and that a sudden and compulsory separation from their aunt and grandmother would destabilise them and cause severe emotional distress.

The evidence of the children’s response to contact with their mother and their behaviour whilst being returned to their mother’s care stands in stark contrast to the case advanced by the respondents. I acknowledge that, in the assessment of the Children’s Guardian, “Y was strongly resistant to the idea of spending any time with her mother even just for a short visit” and “Y and Z both present as strongly resistant to spending time with their mother, and do not wish to be separated from their current carers.” However, the Children’s Guardian further noted:

“Whilst their views appear strongly held, it is yet to be seen how the children may respond to time with their mother in person. The family time which is planned, may allay their concerns, but may also present an opportunity for the children to refuse to see her, which itself could further entrench their resistance.”

In this context, and in stark contrast to the assertions of the paternal grandmother and the paternal aunt, during contact on 30 September 2025 Z appeared happy to spend time with the mother. She was willing to speak with her mother and gave her hugs and kisses. Y was more reluctant to engage with the mother, but did show increasing warmth during the contact session. Even during this one contact that the Guardian saw, she observed progress in Y’s presentation and engagement with her mother. The Children’s Guardian observed that towards the end of the contact not only was Y physically closer to her mother and interacting with presents that the mother had brought, but that Y also put on a hat which the mother had been wearing during much of the contact with the children. The Children’s Guardian considered that this was a proxy for Y seeking closeness to her mother. In the assessment of the Children’s Guardian, this was a good sign that Y was seeking some closeness by proxy. During the course of the contact, the Children’s Guardian assessed the mother to be good at managing the children’s different presentations and competing needs, and that she behaved and reacted appropriately towards them.

Whilst the paternal grandmother and the paternal aunt have alleged that contact has had an adverse impact on the children, this is not borne out in the assessment of the Children’s Guardian. Further, and importantly, the court having made an order under s.5 of the 1985 Act placing the children in the care of their mother, the Children’s Guardian reported the result of that change as follows:

“I sat the girls down and told them I had been in a big meeting where a decision had been made, that I was coming to tell them about. I explained that the judge said that for now, until he makes his next decision, they will be staying with their mum, and that this might be a few days or a couple of weeks. Y said, 'no I don't want to' and Z then also said 'no I don't want to go'. The girls both repeated this a couple of times. I acknowledged that it was a big change and maybe a shock. Y had tears in her eyes at this point. I asked Y how she was feeling, and she shook her head, not saying anything. I asked if she felt cross and she nodded her head, yes. I asked if she also felt sad and she said 'yes'. I told them both that it was ok to have those feelings, or any other feelings, and that it is ok if their feelings change or stay the same. I gave them some time in silence to process the news. I asked if they had anything questions for me, they said no. I brought the meeting to an end by saying that I heard how they were feeling, but the decision has been made so they would be going home with mum tonight, and that it was time to go. Y made a slight grunting sound and gently stamped her foot but both girls got up and were fairly placid as they followed me out of the room. They each repeated that they did not want to go whilst coming with me. Y folded her arms across her chest as she walked and had a serious look on her face but was otherwise compliant. On the way she asked me, 'when will I come back here?' I told her she would be coming to school as normal tomorrow, and that mum would drop her off in the morning.

When we arrived in reception mum greeted them both with a big smile and put her arms out for a hug. Z gave her mum a hug, Y shrugged out of the way of a hug but stayed where she was, near to mum and Z. Ms Harris said they were ready to go, and mum walked the girls out. Y momentarily stood against the door in reception, seemingly in protest. I was stood out of sight but heard Ms Harris suggest that she go with her sister, which prompted Y to follow her mum and sister out of school.”

Subsequent updates obtained from the school by the Children’s Guardian record no adverse reaction on the part of the children to their change of residence. The mother reports that the children sought to share a bed with her on their first night in her care. In oral evidence, the Children’s Guardian expressed herself to be reassured by these observations.

In the foregoing circumstances, I am satisfied that there is nothing to suggest that the children would be at grave risk of physical or psychological harm or would otherwise be placed in an intolerable situation by being returned to the care of their mother to enable the implementation of a return order to Brazil in this case. Such risk to Y or Z in Brazil can be confidently discounted by the court. In the circumstances, I am satisfied that it is not necessary to consider what protective measures may meet such a risk.

I am likewise satisfied that the assertions made by the father, the paternal grandmother and the paternal aunt regarding the position in Brazil do not reach the threshold at which the court is required to consider whether there are in place protective measures to protect the children from a grave risk of physical or psychological harm or otherwise intolerable situation. Whilst the father has not filed an answer in these proceedings, he asserts that threats were received when the children were living in Brazil, in the form of telephone calls from anonymous persons threatening to harm the children that continued after the children arrived in the United Kingdom but which have now stopped. He contends the threats allegedly made are credible in circumstances where there is a prevalence of violent crime in Brazil.

The claims made by the father of harassment and threats in Brazil feature in the protection claim made by the paternal grandmother on behalf of herself and the children as dependants. In her Initial Contact and Asylum Questionnaire dated 6 June 2024 the paternal grandmother claimed that the reason she sought asylum for herself and the children from Yemen and Brazil was because:

In the Statement of Evidence form for her asylum interview on 17 December 2024 the paternal grandmother stated she had been living in Brazil for five years. During the course of her asylum interview the paternal grandmother is clear that “I have not personally had any threats, but there were many cases in schools where children have been kidnapped”. She confirmed that no one had directly threatened her in Brazil and was not able to name anyone she feared in Brazil. In being asked whether she had any other reasons for not returning to Brazil, the other reasons for not returning were, she said, “I also want a safe place for granddaughter because I am too old to look after them on my own, and Brazil does not give me any benefits or accommodation so I cannot really support them financially.” In these circumstances, the paternal grandmother was not able to provide a timeline of threats nor able to articulate any harm consequent upon returning to Brazil, stating simply that “I just cannot go back because I have nobody in Brazil”.

The paternal grandmother also deals with these matters in her first statement in the proceedings under the 1980 Hague Convention dated 30 May 2025, which statement the paternal aunt adopts in its entirety. In that statement, the paternal grandmother claims as follows within this context:

It is clear from the grandmother’s statement that, even if taken as threats and harassment, the phone calls received by the paternal family in Brazil following the abduction of the children from Saudi Arabia resulted only in the father suggesting a temporary holiday with the paternal aunt in the United Kingdom, suggesting the conduct was not sufficient to make the paternal family believe Brazil was too unsafe to return to. When the paternal grandmother booked flights for herself and the children to the United Kingdom, she purchased return tickets, again suggesting that the paternal grandmother and the paternal family did not consider Brazil was too dangerous to return to following a holiday. The social work disclosure arising from the involvement with the local authority records no mention being made of threats and harassment in Brazil.

The Secretary of State dismissed the protections claims made by the paternal grandmother for herself and the children on 13 June 2025. The reasons given for dismissal of appeal were that the paternal grandmother feeling unsafe or unsupported in Brazil did not reach threshold of persecution, she was unable to provide a clear and specific timeline of issues, the paternal grandmother was vague about who she feared in Brazil and her account was speculative and internally inconsistent regarding the safety of Brazil for children, she provided no evidence that she has been targeted by any organised criminal groups in Brazil, confirmed she had never personally been threatened and was unable to explain why anyone would target the family specifically.

Within the foregoing context, viewed as a whole, the evidence demonstrates that a risk presented by anonymous threats and harassment was not the reason the paternal grandmother wrongfully removed the children from the jurisdiction of Brazil.

The evidence that deals with the issue of alleged threats and harassment in Brazil strongly suggests that, in both these proceedings and in the protection claim made by the paternal grandmother, there has been a concerted effort by the paternal family to depict legitimate enquiries made by the maternal family regarding the whereabouts of the children following their abduction from Saudi Arabia as threats and harassment grounding a grave risk of physical harm in Brazil. In particular:

Further, the timing of the children’s move from Brazil to England clearly fits with the mother’s arrival in Brazil in an attempt to recover them following their abduction from Saudi Arabia. The “anonymous threats” (as distinct from the general assertion by the paternal grandmother that Brazil is not a safe country and a country in which kidnapping of children takes place) weren’t reported until 29 June 2024, following the second abduction of the children. No steps were taken to obtain police assistance or legal protection prior to this point in Brazil. The children’s uncle, did not take any steps regarding his own children to ensure they were placed somewhere safe, despite his alleged concerns, but just sought to secure the “safety” of Y and Z by ensuring they were removed from Brazil.

In the circumstances, I am satisfied that there is nothing to suggest that the children would be at grave risk of physical or psychological harm or would otherwise be placed in an intolerable situation by reason of a risk of threats or harassment were they returned to Brazil. The risk to Y or Z of such conduct in Brazil can be confidently discounted. In the circumstances, I am again satisfied that it is not necessary to consider what protective measures may meet such a risk.

I reach the same conclusion with respect to the vague allegation of familial sexual abuse made by the father, the paternal grandmother and the paternal aunt with respect to Y.

Neither Y or Z has made an allegation of sexual abuse. Neither child mentions sexual abuse or worries about sexual abuse to the Children’s Guardian. The closest the evidence relied on by the father, the paternal grandmother and the paternal aunt comes to such an allegation is the transcript of a voice note that is said to have been made by Y and states as follows:

“Woman: Okay [unclear] and who else bothers or upsets you?

Child: Hamed

Woman: What does he do?

Child: He annoys me, bothers me, and even [unclear] upset me

Woman: How does he bother you?

Child: And [unclear boy’s name]

Woman: How does he bother you? How does Hamed bother you?

Child: He hits me, annoys me, and [unclear] when I just come to him

Child: [Unclear] He lifts his leg over me [unclear] and the blanket. Also sits on me, he sits on me, I swear

Woman: That makes me sad

Child: He sits on me and also...

Child: And also, what he does to me... and then also [unclear] so hard like this [unclear]And also sits on me while I’m just little

Woman: That’s it, don’t [unclear] with him, don’t play with him. Okay?

Child: They all tell me that, yes, they all tell me that. No, but [unclear]

Woman: Okay

Child: Even my mom tells me that too

Woman: That’s it

Child: And also, also I open the door [unclear] [jumps on the bed?] he doesn’t want me to come to him

Woman: Okay, that’s not okay. Sit down, don’t play with him, don’t hang out with him, okay?

Child: Okaaaaay

Woman: Good girl

[Whispers]

Child: [Chocolate?]

Child: That’s it [unclear] bathroom, bathroom.”

At the time this voice note was made, Y was six years old and the uncle referred to in the voice note was 11. Whilst the paternal grandmother and paternal aunt contend that they also have documentary evidence from the Saudi Arabian police corroborating sexual abuse, that purported evidence is simply a handwritten note of no clear provenance of which records “1) ... At Police station Jeddah (32-3-1070)/ 16th Feb 2023 2) R-23-44128837” and a photograph of a public government website about safeguarding. Neither the paternal grandmother nor the paternal aunt made mention of Y having been sexually abused by a family member when the paternal aunt made a referral to CAMHS in respect of Y (notwithstanding she did not hold parental responsibility for Y). The father left the children in the care of the mother in Saudi Arabia prior to their being taken to Yemen notwithstanding the concerns regarding sexual abuse that are now raised.

Having regard to the authorities set out above, it is not sufficient for an abducting parent simply to raise the spectre of sexual abuse for the court to assume the allegation is true and go on to consider protective measures. Once again, if this were the position then all an abducting parent would need to do to put the sufficiency of protective measures in issue would be to make a bare, unevidenced allegation of sexual abuse. As the authorities make clear, whilst the evaluation of Art 13(b) proceeds on the assumption that the allegations made by the respondent are true, that does not mean that the court simply accepts, unquestioningly, the harm or harms alleged by the respondent before it considers protective measures. As with the question of the children’s reaction to their mother and the alleged threats and harassment in Brazil, in respect of the allegation of sexual abuse the court has to consider whether the evidence enables it confidently to discount the possibility of sexual abuse. Having regard to the lack of any allegation by Y, of any cogent evidence to corroborate an allegations of sexual abuse and to the inconsistent treatment of the issue by the paternal family in the documentary evidence, in my judgment the risk to Y or Z of sexual abuse in Brazil can be confidently discounted. In the circumstances, I am once again satisfied that it is not necessary to consider what protective measures may meet such a risk.

As with the child’s objection exception under Art 13, I am satisfied that the father, the paternal grandmother and the paternal aunt have not satisfied the court that the exception under Art 13(b) is made out. In circumstances where neither exception relied on by the respondents under Art 13 is made out, the court must make a summary order requiring the return of Y and Z to the jurisdiction of Brazil.