FD25P00187 - [2025] EWHC 2629 (Fam)

In this matter I am concerned with an application under the Child Abduction and Custody Act 1985 (hereafter “the 1985 Act”) for a return order pursuant to Art 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereafter “the 1980 Hague Convention”) in respect of Y, born in 2017 and now aged 8, and Z, born in 2020 and now aged 5. The applicant is the mother of the children, M, represented by Miss Renton of King’s Counsel and Mr Rowbotham of Counsel. The mother was born in Saudi Arabia and is of Yemeni heritage. She currently resides in Brazil with “residência permanente” in that jurisdiction.

The respondents to the application are the children’s father, F, represented by Mr Christopher Hames of King’s Counsel and Mr Fletcher of Counsel, and the children’s paternal grandmother, PG, and paternal aunt, PA, represented by Mr Mark Jarman of King’s Counsel and Mr Jonathan Evans of Counsel. They are also of Yemeni heritage. The father now resides in the United States where he is awaiting the outcome of an application for resident status (known colloquially as “a Green Card”). (Footnote: ¹) The paternal grandmother and the paternal aunt are present in this jurisdiction. The aunt has been granted refugee status in the United Kingdom. The paternal grandmother has a pending appeal with respect to her protection claim for asylum refused by the Secretary of State, in which the children are named as dependants. The children are separately represented in these proceedings through their Children’s Guardian, Daisy Veitch, by Ms Adele Cameron-Douglas of Counsel.

The mother’s application arises from the removal of the children from the jurisdiction of the Federative Republic of Brazil. The mother asserts that Y and Z were wrongfully removed from Brazil by the paternal grandmother on 3 June 2024 and brought to this jurisdiction, having prior to that been abducted to Brazil by the father from the jurisdiction of Saudi Arabia. Within that context, the following matters are not in dispute between the parties:

Within the foregoing context, and having indicated through Mr Jarman that they no longer pursue their submission that the mother did not have rights of custody, in light of the contents of a legal analysis from the mother’s Brazilian lawyer which is not disputed, the paternal aunt and the paternal grandmother contend that the following exceptions to the making of a return order are made out in this case:

Notwithstanding that these proceedings were issued 6 months ago, that the father has been on notice of the proceedings for at least 3 months and that the father was able to understand from his mother and his sister the process of locating and instructing lawyers in this jurisdiction, father did not engage legal representation until a number of days prior to the final hearing. In this context, at the outset of the final hearing the father made an adjournment application through Mr Hames and Mr Fletcher. That application was supported by the paternal aunt and the paternal grandmother and opposed by the mother and by the Children’s Guardian. For reasons given in a separate ex tempore judgment I dismissed the application for an adjournment. The father has not filed an answer in these proceedings but relies on the same exceptions advanced by the paternal grandmother and paternal aunt.

It is important to highlight that a change of circumstances consequent upon a preliminary application made at the outset of the hearing has, to a certain extent, acted to change aspects of the forensic landscape in this case. Until the end of the first day of the hearing, the children were in the care of the paternal grandmother and paternal aunt. On the first day of the hearing I was persuaded on the application of the mother, with the support of the Children’s Guardian, to make an interim order pursuant to s.5 of the 1985 Act providing that the children move from the care of the paternal grandmother and the paternal aunt into the care of the mother pending the court’s decision on the mother’s substantive application. That order was made in the context of the arrival in this jurisdiction immediately prior to the final hearing of a paternal uncle, PU, who had been closely involved in the wrongful removal of the children from Brazil and where, 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. As a result of that step being taken, the court now has very up to date evidence regarding one of the issues in dispute between the parties, namely the impact on the children of being returned to their mother’s care after two years apart from her.

Finally, by way of introduction, and as I have noted, this matter is complicated by the fact that the children are currently the subject of protection claims instigated by the paternal grandmother, refused by the Secretary of State and now the subject of appeal. This court has notified the Secretary of State of the existence of these proceedings under the 1980 Hague Convention and has requested that the appeal hearing be expedited in accordance with the President’s Practice Guidance - Case Management and Mediation of International Child Abduction Proceedings 2023. The bundle contains correspondence from the Home Office confirming that the allocated tribunal has been notified of the linked proceedings under the 1980 Hague Convention. The Government Legal Department has confirmed that the Secretary of State wrote directly to the Hatton Cross Tribunal on 19 August 2025 to advise of the linked Hague Convention proceedings. To date no response has been received.

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 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 can 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 indicate that she will 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 this question.