![[2025] EWHC 1713 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
With regards to protective measures, in E v D (Return Order) [2022] EWHC 1216 (Fam) MacDonald J at [32] drew the following principles from Re GP (A Child: Abduction) [2018] 1 FLR 892, Re C (Children)
With regards to protective measures, in E v D (Return Order) [2022] EWHC 1216 (Fam) MacDonald J at [32] drew the following principles from Re GP (A Child: Abduction) [2018] 1 FLR 892, Re C (Children) (Abduction: Article 13(b)) [2019] 1 FLR 1045 and Re S (A Child) (Hague Convention 1980: Return to Third State) [2019] 2 FLR 194:
The court must examine in concrete terms the situation that would face a child on a return being ordered. If the court considers that it has insufficient information to answer these questions, it should adjourn the hearing to enable more detailed evidence to be obtained.
In deciding what weight can be placed on undertakings as a protective measure, the court has to take into account the extent to which they are likely to be effective both in terms of compliance and in terms of the consequences, including remedies, in the absence of compliance.
The issue is the effectiveness of the undertaking in question as a protective measure, which issue is not confined solely to the enforceability of the undertaking.
There is a need for caution when relying on undertakings as a protective measure and there should not be a too ready acceptance of undertakings which are not enforceable in the courts of the requesting State.
There is a distinction to be drawn between the practical arrangements for the child's return and measures designed or relied on to protect the children from an Art 13(b) risk. The efficacy of the latter will need to be addressed with care.
The more weight placed by the court on the protective nature of the measures in question when determining the application, the greater the scrutiny required in respect of their efficacy.
- Heading
- Mr. Nicholas Allen KC
- The application is brought by the child’s father. It is resisted by the child’s mother
- B was born in Portugal on 18 th December 2021 (aged 3). She is a dual Portuguese-British national
- On 23 rd December 2024 M issued CA 1989 proceedings in the Family Court at X [1734-5391-7023-3409] for a child arrangements “lives with” order – and proposed that she and B would spend four months per
- As recorded on the face of the order of 21 st March 2025, and as confirmed in her Answer dated 14 th April 2025, M originally intended to pursue a defence of acquiescence under Article 13(a) amongst o
- At the outset of the hearing I was informed by Ms. Guha of “very serious developments earlier this week” . These were summarised in an email received from the Cafcass Officer (Ms. Veitch). The email r
- The social worker spoke to M who reported she felt worried that something like this would happen, because B and F kissed on the mouth which she did not like and felt was inappropriate. M also said tha
- In the end neither party sought that they (or the other party) give oral evidence
- The issues I have to decide are
- Article 12 states inter alia as follows
- In Re N (Minors) (Abduction) [1991] 1 FLR 413 Bracewell J at p417 held that settlement falls to be considered at the date of commencement of proceedings “as otherwise any delay in hearing the case mig
- With just two exceptions Re N has been consistently followed at first instance (including in AH v CD and Others [2018] EWHC 1643 (Fam) per Williams J (see further below)). Re N was also followed in Re
- The two exceptions are (i) ES v LS (Abduction: Settlement) [2022] 1 FLR 1285 where Mostyn J considered the issue at [52]-[69] and took the contrary view. He concluded at [69] that “[h]aving looked at
- This remains an issue where as Harrison J observed at [52] “there remains no (binding) authority in which [the Re N] conclusion has been fully reasoned or one in which it made a difference to the outc
- The issue was not fully argued before me. With this caveat and conscious that I express any view with considerable diffidence as (either way) I will be disagreeing with judges of the greatest experien
- This issue is however likewise academic in this case as it makes no difference to outcome. It was accepted by both parties’ counsel that if B was not “now settled” as of 13 th March 2025 (the date of
- As to the concept of “settlement” itself the leading authority is widely considered to be Cannon v Cannon [2005] 1 FLR 169. Thorpe LJ stated at [53] that “[a] broad and purposive construction of what
- In Re C (Child Abduction: Settlement) [2006] 2 FLR 797 Sir Mark Potter P gave the following guidance as to how the concept of settlement should be defined
- In F v M and N (Abduction: Acquiescence: Settlement) [2008] 2 FLR 1270 Black J (as she then was) at [66] cautioned against “the development of an unduly technical approach to the question of settlemen
- In AH v CD and Others Williams J summarised the applicable principles as follows
- The authorities were recently reviewed in Re G and B (Children) (Abduction: Settlement: Grave Risk: Ukraine) per Harrison J at paragraph [39] onwards. At [50] he stated that the question of settlement
- As Thorpe LJ stated in Cannon v Cannon at [57] “[a] very young child must take its emotional and psychological state in large measure from that of the sole carer” . It was common ground between the pa
- On M’s behalf it was submitted that B is settled having regard to the following factors
- On F’s behalf it was submitted that the mere fact of how long B has been in this jurisdiction is not enough. She will derive her sense of emotional and psychological settlement from her relationship w
- I agree with Mr. Gupta and Ms. Gaunt when they say in their Position Statement at paragraph 19 that Ms. Veitch’s Cafcass Report is balanced and leaves the question open for the court. I further agree
- In my judgment B is not settled in this jurisdiction. In reaching this conclusion I agree with Ms. Veitch at paragraph 53 of her report that “what [B] has been told by her parents about what to expect
- This is not an issue I need to resolve. I agree with Mr. Gupta and Ms. Gaunt that as is said at paragraph 22 of their Position Statement the above means B has either (i) received a consistent message
- In this context I accept F’s evidence at paragraph 5 of his Statement of 2 nd May 2025 that B has said to him “when am I going to Portugal?” . I accept this evidence because although it is disputed by
- B’s young age is also a relevant factor in this analysis: she is not in full-time education and is not of an age to have established close ties with anyone but her parents. As set out above it is comm
- I also conclude a lack of settlement in this country will have been compounded by B’s six visits to Portugal (one of which was three and a half months long) and visiting F’s home in Portugal. M inaccu
- I also conclude from M’s WhatsApp messages and her emails to F that she herself had not considered remaining in this jurisdiction to be a long-term stable arrangement until relatively recently. I ackn
- Ms. Guha submitted orally that from the time M arrived in this country she “knew in her heart she wanted to stay” . F does not believe this and I conclude it was not the case. However, as Mr. Gupta su
- I also conclude the agreement signed in October 2024 reflected M’s genuine intentions at that time. I note at paragraph 37 of her Statement M states she signed the agreement “after six months of repet
- I am fortified in my conclusion that M’s intentions were genuine by the fact that she rented a property in Portugal in October 2024 and what she thereafter said to F about it. In my view securing this
- It is relevant when considering the property that M has rented in Portugal and her now apparent criticisms of it that, as described by the Cafcass Officer at paragraph 28 of her report, M’s present ho
- Having reached this conclusion I do not need to resolve the factual dispute as to whether M has now moved most of her and B’s belongings to her Portuguese property. F states she has relying inter alia
- For completeness I should record that in reaching my conclusion on settlement I accept (as was said on M’s behalf) that when she acknowledged to Ms. Veitch (as recorded at paragraph 49 of her report)
- If, contrary to my conclusion, B was settled in this jurisdiction at the material time, my discretion will be “at large” ( Re M (Zimbabwe) [2008] 1 FLR 251 per Baroness Hale of Richmond at [43]). She
- In F v M and N (Abduction: Acquiescence: Settlement) Black J (as she then was) observed at [72] that it is “unusual” for a summary return to be appropriate if the settlement defence is established. Sh
- In ES v LS (Abduction: Settlement) Mostyn J stated
- In AX v CY (Article 12: Settlement) [2020] 2 FLR 1257 Robert Peel QC (sitting as a Deputy High Court Judge) did not consider that the settlement defence had been established but if it had been made ou
- M presently has a temporary residence permit which lapses on 30 th June 2025. I accept that Portuguese immigration law is, to adopt the phrase used by Ms. Guha and Mr. Laing at page 17 of their Positi
- The report emphasises the following stressors as operating cumulatively “ in addition to the general and expected stresses of such circumstances” (i) isolation; (ii) an inability to return or avail he
- There is also a separate policy point that arises on the facts of this case. The parties were engaged in mediation as to if (if not simply when) B should return to Portugal. Ms. Guha submitted that “t
- In addition I agree with Ms. Veitch when she states at paragraph 43 of her report that “ the fact that [B] has not yet attended nursery for any significant period suggests she is better placed to adap
- I likewise agree with Ms. Veitch’s view as expressed at paragraph 45 of her report that B “will, to a great extent, settle and adapt to a change in circumstances, provided that she is in [M’s] care. S
- I accept that as stated in Re M (Zimbabwe) the further away one gets from a speedy return envisaged by the Convention, the less weighty its objectives are
- Article 13(b) states
- The Supreme Court examined the law in respect of the harm exception in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 and Re S (A Child) (Abduction: Rights of Custody) [2012] 2 FLR 442
- At [32] of MB v TB (Article 13: Alleged Risk of Oppressive Litigation) MacDonald J further stated
- In Re C (Children) (Abduction: Article 13(b)) [2019] 1 FLR 1045 Moylan LJ made clear that it is not the case that the court has to accept allegations made without conducting an assessment of the credi
- In Re C (A Child) (Abduction: Article 13(b)) [2021] EWCA Civ 1354 Moylan LJ emphasised at [48] and [49] that the risk to the child must be a future risk. At [50] he cited from the Guide to Good Practi
- Article 13(b) was also considered in Re IG ( A Child) (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123 per Baker LJ in which he summarised at [47] the applicable principles to
- With regards to protective measures, in E v D (Return Order) [2022] EWHC 1216 (Fam) MacDonald J at [32] drew the following principles from Re GP (A Child: Abduction) [2018] 1 FLR 892, Re C (Children)
- Further at [33] MacDonald J stated
- In H v O; and others (Secretary of State for the Home Department Intervening) [2025] EWHC 114 (Fam) , MacDonald J at [45] repeated what he had said in E v D (Return Order) as to what are the key princ
- I am also entitled to have regard to the purpose and policy aims of the Hague Convention. In Re W (Abduction: Intolerable Situation) [2018] 2 FLR 748 Moylan LJ stated
- I shall take M’s allegations against F (and the consequent risk of harm) at their highest and thereafter if satisfied that the risk threshold is crossed go on to consider whether protective measures s
- I also remind myself that as stated in Re B per Moylan LJ at [70] that
- If I find Article 13(b) satisfied, I retain a residual discretion to return
- I shall consider these in turn (albeit conscious that I also need to evaluate their cumulative effect)
- I readily acknowledge the seriousness of these allegations of domestic abuse. However I do not consider that, even taken at their highest, they constitute a grave risk that B would be exposed to harm
- I agree with Mr. Gupta and Ms. Gaunt that the allegations are mostly situational to the parties’ relationship. I also consider that M’s case is undermined by her own proposals: as recently as 19 th Ja
- M already has rental accommodation in Portugal, which she chose and where M and B have stayed. M’s assertion at paragraph 96 of her Statement that “I do not have anywhere to live in Portugal” is not c
- I have likewise considered this above. M asserts that she will feel isolated and will be impacted by a return to Portugal. However the SJE report does not support her Article 13(b) defence. At most, t
- The threshold for Article 13(b) is high. In Re B (A Child) (Abduction: Article 13(b): Mental Health) [2024] EWCA Civ 1595 Moylan LJ at [54] reiterated that the “key question” is
- The assessed potential impact on M’s mental health in this case does not satisfy this threshold
- In light of the SJE immigration expert’s opinion that M’s property in Portugal may not be a sufficient permanent address for the purpose of M renewing her existing visa or obtaining a new one, F there
- My return order is conditional upon all the foregoing being put in place
- I am conscious of the importance of this issue as discussed in Re T (Abduction: Protective Measures: Agreement to Return) [2024] 1 FLR 1279 per Cobb J and with whom the other two members of the Court
- Conclusions