FD25P00187 - [2025] EWHC 2629 (Fam)

As I have noted, whilst the protections claims made by the paternal grandmother with respect to the children were refused by the Secretary of State for the Home Department, they are now the subject of appeal. Whilst in Re A and Others (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria) Gwynneth Knowles J determined that implementation of a return order does not need to wait for the asylum claim to be finally determined if the return in question is to a safe third country, in this case the Secretary of State has confirmed that Brazil is not treated as a safe third country for the purposes of s.77(2B) of the Nationality, Immigration and Asylum Act 2002 as amended. Accordingly, as matters stand, and in accordance with G v G, in circumstances where a protection claim is being pursued in relation to Y and Z they have protection from refoulement pending the determination of claim. Accordingly, the return order made by this court cannot be implemented until the claims in respect of the children are withdrawn or until all legal challenges to the decision of the Secretary of State have been exhausted.

This is a difficult and frustrating position to arrive at in circumstances where, on the evidence available to this court, the asylum claims made in respect of the children followed the abduction of the children from Brazil and were made by an adult who did not, and does not, hold parental responsibility for the children. Indeed, and whilst ultimately a matter for the immigration authorities, the evidence before this court suggests strongly that the protection claims are a sham designed to keep the children from their mother following their being abducted first from Saudi Arabia and thereafter from Brazil. Whilst the court is grateful to the Government Legal Department confirming that the Secretary of State wrote directly to the Hatton Cross Tribunal on 19 August 2025 to advise of the linked Hague Convention proceedings, the paternal grandmother having failed to do so, a response from the Tribunal has yet to be received.

As I have noted, during the course of the hearing, the court heard some submissions as to whether (in circumstances where the court made the children wards of court during the course of these proceedings in circumstances where, at that time, there was no person with parental responsibility in the jurisdiction) either a parent with parental responsibility or the court in respect of its wards could seek the withdrawal of the children’s asylum claims in the event that the court made a return order in favour of the mother. In circumstances where the Practice Guidance provides a mechanism for reiterating the need for expedition of the immigration appeal and that, given my decision in this case, I intend to invite the paternal grandmother now to withdraw the claims in respect of the children, I do not consider it necessary to reach a conclusion on that point at this stage. If, however, the claims continue to be pursued and further delay ensues, the court will need to revisit the question of whether a parent with parental responsibility, or the court in respect of its wards, could, where it appears to the court that the asylum claim is being used to sustain an abduction or retention, seek the withdrawal of the children’s asylum claims.

I will direct that the paternal grandmother shall confirm within 7 days of the date of this judgment whether she is willing now to withdraw the protection claims made on behalf of the children and, if so, to confirm that she has done so. I will also direct that a copy of this judgment is provided to the Secretary of State, with permission to her to disclose it to the Upper Tribunal.

Finally with respect to implementation, I am not satisfied that Y’s need for a medical procedure to repair a hernia needs to delay the implementation of the return order. The evidence before the court is clear that the procedure is not urgent. Y has a reducible umbilical hernia. It is a congenital defect in the umbilicus. It tends to decrease in size and may even close completely spontaneously. In this context, it is a low-risk condition, and many surgeons do not operate at a young age to give enough time to resolve spontaneously without any surgical intervention. The risks of surgery include anaesthetic risks, bleeding, infections, reoccurrence of the hernia and scarring. Not operating at this stage carries a small potential risk of incarceration/obstruction. Y has never had any episode of obstruction and remains asymptomatic. I treat claims made by the paternal family of persistent pain and discomfort with caution in light of their manifest lack of credibility in other areas. It is conceded the school have not reported that Y is in pain or that she has not been eating at lunch. Y informed the Children’s Guardian that it sometimes hurts her, and is sometimes more visible, such as when she is doing sports. The Children’s Guardian is clear in her recommendation that:

“...the medical evidence is that the repair is non-urgent and could wait. In my view therefore, the procedure ought not to delay any decision of the court with regard to summary return and need not delay a return itself.”

In the circumstances, subject to directing the paternal grandmother shall confirm within 7 days of the date of this judgment whether she is willing now to withdraw the protection claims made on behalf of the children and, if so, to confirm that she has done so, and subject to revisiting the question of whether a parent with parental responsibility or the court in respect of its wards could, where it appears to the court that the asylum claim is being used to sustain an abduction or retention, seek the withdrawal of the children’s asylum claims, the return order should be implemented as soon as all legal challenges to the decision of the Secretary of State have been exhausted.