M v F (Art 13 Thresholds Not Met) [2025] EWHC 2629 (Fam)

[2025] EWHC 2629 (Fam)

Case No FD25P00187

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/10/2025

Before

MR JUSTICE MACDONALD

Between

MApplicant

FFirst Respondent

PASecond Respondent

PGThird Respondent

Miss Jacqueline Renton KC and Mr Simon Edward Rowbotham (instructed by London Family Solicitor) for Applicant

Mr Christopher Hames KC and Mr Matthew Fletcher (instructed by Creightons Solicitors) for First Respondent

Mr Mark Jarman KC and Mr Jonathan Evans (instructed by Duncan Lewis Solicitors) for Second and Third Respondents

Ms Adele Cameron-Douglas (instructed by Cafcass Legal) for Fourth and Fifth Respondents

Hearing Hearing dates: 6 and 7 October 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 17 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

MR JUSTICE MACDONALD

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

[1]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.

[2]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”). I am satisfied that the father lied to the Children’s Guardian when he claimed to already have a Green Card permitting him to reside in the United States, in addition to not revealing that he had remarried and has another child, aged 2 months old. 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.

[3]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: i) Both children are under the age of 16 years, pursuant to Art 4 of the1980 Hague Convention. ii) At the date the children were removed from the jurisdiction of Brazil by the paternal grandmother, each child was habitually resident in that jurisdiction for the purposes of Art 3(a) and Art 4 of the 1980 Hague Convention. iii) At the date the children were removed from the jurisdiction of Brazil by the paternal grandmother, the mother had attributed to her rights of custody in respect of the children and was exercising those rights of custody for the purposes of Art 3(a) and 3(b) of the 1980 Hague Convention. iv) In the circumstances, the removal of the children from the jurisdiction of Brazil by the paternal grandmother was wrongful for the purposes of Art 3 of the 1980 Hague Convention. v) A period of less than one year elapsed between the date of wrongful removal and the commencement of the proceedings for the purposes of Art 12 of the 1980 Hague Convention. vi) Pursuant to Art 12 of the 1980 Hague Convention, the court is required to make a return order forthwith unless one of the exceptions contained in the Convention is made out.

[4]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: i) That Y objects to returning to Brazil and has attained an age and degree of maturity at which it is appropriate to take account of her view, pursuant to Art 13 of the 1980 Hague Convention. ii) That a return order would expose Y and Z to physical or psychological harm or otherwise place each of them in an intolerable situation, for the purposes of Art 13(b) of the 1980 Hague Convention.

[5]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.

[6]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.

[7]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.

[8]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.

BACKGROUND

[9]The mother was born in Saudi Arabia. Whilst she has never lived in Yemen, she remains a Yemeni Citizen by descent and has not acquired Saudi citizenship. She has a degree in accountancy. The father was born in Yemen and is a Yemeni citizen. The father moved to Saudi Arabia when he was 24 years old. The parents were married by way of an Islamic marriage ceremony on 19 July 2016. As I have noted, Y was born on 11 June 2017 and Z was born on 10 March 2020. At the time of the mother’s pregnancies the parents lived in Saudi Arabia but they made the decision that the children would be born in São Paulo, Brazil in order to obtain Brazilian citizenship. Y’s birth in Brazil enabled the mother to apply for Brazilian residency, which she obtained in 2017. Both children are dual Yemeni-Brazilian nationals.

[10]The parents divorced on 16 May 2023 in Saudi Arabia. On 22 May 2023, the mother was awarded custody of the children by the Court of First Instance of the Civil Status in Jeddah. It is no longer disputed by the father or the paternal grandmother and aunt that that order gave, and continues to give, custody of the children to their mother. The decision of the first instance court indicates that the father was served electronically, as is now permitted in Saudi Arabia, but did not appear at the custody hearing. Notwithstanding his failure to attend, the father appealed that order but the Court of Appeal of Jeddah later upheld the custody order in favour of the mother.

[11]The existence of the custody order made by the Court of First Instance in Jeddah directly contradicts the father’s assertion that the mother relinquished her parental rights and responsibilities towards the children within Saudi Arabia, and signed a document confirming this and conferring on him sole decision-making authority regarding the children’s care and their country of residence thereafter. In any event, the expert report directed by the court from Mr Ian Edge of Counsel confirms that the document has no official standing in Saudi Arabia and cannot, as regards the rights of custody over children, overrule or usurp the authority of the Sharia / Personal Status court in Saudi Arabia. Mr Edge confirms that the Saudi courts have frequently held that the issue of custody is not one to be decided by the parents of children because it is not a right of the parents but a right of the children and can only be decided by a court. The Court of Appeal of Jeddah province applied this principle when dismissing the father’s appeal against the custody order in favour of the mother as being without merit on 30 August 2023.

[12]Following the decision of the Court of First Instance of the Civil Status in Jeddah giving custody to the mother the father removed the children to Yemen in the knowledge that the mother was to follow and collect the children from his care pursuant to the custody order of the Saudi court. However, before leaving Saudi Arabia the mother learnt from family members that the father had abducted the children to Brazil, it subsequently transpiring that he had arrived with the children in that jurisdiction on 23 June 2023. The expert report of Mr Edge confirms that the father had no right to move the children to Brazil without the consent of the Saudi Arabian court and without providing for the mother to be able to exercise her right of custody.

[13]The father took with him to Brazil the mother’s Brazilian identification, resulting in the mother being unable to pursue the father and the children to Brazil. As a result, the mother had to travel to the Brazilian embassy in Turkey in order to obtain a visa for entry into Brazil. This meant the mother was unable to travel to Brazil to seek to recover the children from the father until June 2024. The mother arrived in Brazil on 1 June 2024 and took steps to contact the paternal family, who were residing in São Paulo, to secure the return of the children. The mother was informed by the paternal uncle, PU, that the children were no longer in Brazil. In the bundle is a document from court proceedings in Brazil that records that PU informed a Brazilian court officer executing a search warrant at his property that the children:

“...had been living with him for a few months, but their father...had come to collect them around a month ago, saying they were travelling to the United States.”

[14]The statement of PU to the Brazilian court officer was not true. Whilst the father had flown to the United States on 14 July 2023 and has not returned to Brazil since, the children themselves in fact had not travelled with him and remained in Brazil at the time of the mother’s arrival. Further, the mother having issued court proceedings in the Family Court São Caetano do Sul, São Paulo, it transpired from a search ordered by the Brazilian court that the children had been removed on 3 June 2024, the day after the mother finally managed to enter the jurisdiction of Brazil. The mother subsequently discovered that this second abduction of the children was undertaken by the paternal grandmother who travelled with the children to England via Lisbon. In her asylum interview on 17 December 2024, the paternal grandmother confirmed that the father and the paternal uncle, funded the children’s abduction to the United Kingdom.

[15]Whilst the father and the paternal grandmother and aunt had, prior to the final hearing, persisted in arguing that the paternal grandmother and aunt had parental authority in respect of the children pursuant to powers of attorney granted by the father, that assertion is no longer pursued. The addendum expert report of Mr Edge confirms that the father was not able to delegate any of his rights to any family member without the consent of the Saudi court, which would have required evidence that the mother’s right of custody was being upheld and catered for in that delegation. Mr Edge opines that the father could not validly make the grandmother the custodian of the children without the Sharia court’s permission. No party seeks to challenge the evidence of Mr Edge.

[16]Following their arrival in the United Kingdom, on 20 June 2024, the paternal grandmother and the children were made the subject of a Home Office removal direction to Brazil on 23 June 2024 under s.10 of the Immigration and Asylum Act 1999. The paternal grandmother did not comply with the removal direction and instead made a protection claim for herself and for the children. This notwithstanding that the paternal grandmother did not hold parental responsibility for the children. Within these proceedings under the 1980 Hague Convention, and where the Secretary of State has confirmed that Brazil is not currently designated as a safe third country, the effect of that application is to delay the implementation of any return order the court may make until the conclusion of the asylum process. The children were placed with the paternal grandmother in one bedroom of a hotel housing asylum seekers and cared for by the paternal grandmother and the paternal aunt.

[17]Whilst the mother attempted to contact the paternal grandmother and paternal aunt on WhatsApp, they initially blocked the mother’s number. During subsequent limited telephone calls, supervised by the paternal uncle, the children were encouraged to lie to the mother in an effort to make her believe that they were in the United States. The mother did not accept as true this story, and on one occasion one of the children complained that it was “cold in England” (the paternal aunt then intervening to tell her to say “in America”). The mother also came across a photograph of the children wearing school uniforms during the course of reviewing publicly available material and was able to identify their school

[18]Within the foregoing context, the mother requested assistance from the Brazilian Federal Central Authority (hereafter “the ACAF”). With the assistance of the Portuguese authorities and Interpol, the ACAF established that the children were in England. The mother’s application for a return order under the 1980 Hague Convention was issued on 15 April 2025.

[19]On 13 June 2025 the protection claims of the paternal grandmother and the children were refused. As I have noted, the paternal grandmother appealed that decision. In seeking to appeal the decision, the paternal grandmother failed to notify the allocated tribunal of the existence of these proceedings under the 1980 Hague Convention to enable the appeal to be expedited. No explanation for this omission has been forthcoming.

[20]The mother has come to the United Kingdom for the final hearing. The Guardian observed contact between the children and the mother on 30 September 2025 at Cafcass’ central London offices with an Arabic speaking interpreter present. As I have already set out, on the first day of the final hearing the court was informed that the paternal uncle had arrived in the jurisdiction immediately prior to the commencement of the final hearing. Whilst he agreed to surrender his Brazilian passport, the whereabouts of his Yemeni passport could not be confirmed beyond his assertion that it was in Egypt (the paternal uncle asserting he had relocated to that jurisdiction from Brazil some two months previously but his own family currently being in Saudi Arabia). Given the evidence on the papers of the involvement of the paternal uncle in the second abduction from Brazil to the United Kingdom, and 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 for the purposes of s.5 by removing the children from the care of the paternal grandmother and paternal aunt and placing them in the care of their mother. The court has a Note from the Children’s Guardian detailing the children’s response to this change.

RELEVANT LAW

[21]The law governing the exceptions under Art 13 of the 1980 Hague Convention relied on by the paternal grandmother and paternal aunt and by the father in this matter is now well settled. Art 13 of the 1980 Hague Convention provides as follows:

“Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”

Child’s Objections

[22]The leading case on child’s objections remains the judgment of Black LJ (as she then was) in Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal)

[2015] EWCA Civ 26

[2016] Fam 1

[23]In evaluating whether the exception under Art 13 based on the child's objections is made out, the court will adopt a two-stage approach. The court will first examine whether, as a matter of fact, the child objects and has attained the age and degree of maturity at which it is appropriate to take account of his or her views. If that threshold is met, the court will then consider whether, in its discretion, to order the return of the child notwithstanding his or her stated objection. Within this two-stage analytical framework, the authorities enjoin the court to have regard to the following principles when applying that framework: i) The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child 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. ii) Whether a child objects is a question of fact. The child's views have to amount to an objection before Art 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish. iii) The objections of the child are not determinative of the outcome but rather give rise to a discretion. iv) Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage. v) There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more. vi) At the discretion stage there is no exhaustive list of factors to be considered. vii) The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. viii) The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly. ix) The court may have to consider the nature and strength of the child's objections, the extent to which they are authentically the child's own or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to the child's welfare, as well as the general Convention. x) In applying these tests, the court is enjoined by the Court of Appeal not to adopt an over prescriptive, over intellectualised approach to the 'gateway' stage and not to adopt an over engineered approach to the 'discretion' stage

[24]In considering Re M (Republic of Ireland: Child's Objections)

[2015] EWCA Civ 26

;

[2015] 2 FLR 1074

, and Re F (Abduction: Acquiescence: Child's Objections)

[2015] EWCA Civ 1022

, in P v S (Re C (1980 Hague Convention: Child Objections))

[2024] EWHC 1875 (Fam)

Cobb J (as he then was) re-emphasised 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. Within this context, the expression of the child’s wishes cannot be said to amount to an objection unless there is a strength, a conviction and a rationality that satisfies the proper interpretation of Art 13.

Harm

[25]As is well known, the proper approach to Art 13(b) and the question of grave risk of exposure to physical or psychological harm or otherwise place the child in an intolerable situation was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal)

[2012] 1 AC 144

. The applicable principles may be summarised as follows: i) There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss. ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process. iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'. v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.

[26]Pursuant to the approach set out in Re E , the court is required to evaluate the evidence against the civil standard of proof, whilst being mindful of the limitations involved in the summary nature of the Convention process. The balancing of the tension between the need to evaluate the evidence against the civil standard of proof and the summary nature of the proceedings means that the court is not required to engage in a fact-finding exercise to determine the credibility of the matters alleged to ground the exception under Art 13(b). Rather, the court proceeds on the basis of assuming the risk at its highest by asking whether, if the allegations are true, there would be a grave risk that the child would be exposed to physical or emotional harm or otherwise placed in an intolerable situation. If the answer is yes, the court goes on to consider what protective measures sufficient to mitigate the risk assumed can be identified.

[27]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. If this were the position, all a respondent would need to do to prevent a return order by reliance on Art 13(b) would be to simply assert a form of harm against which protective measures could not be ineffective. Accordingly, as made clear by Moylan LJ in Re C (Children) (Abduction Article 13(b))

[2018] EWCA Civ 2834

, the approach in Re E does not mean that there is no assessment of the credibility or substance of the allegations. In Re A (Children) (Abduction: Article 13(b))

[2021] EWCA Civ 939

[2021] 4 WLR 99

Moylan LJ articulated the position by reference to the Guide to Good Practice under Art 13(b).

(b) ) that:

“[92] This does not mean, as I said in In re C, at para 39, that it was being "suggested that no evaluative assessment of the allegations could or should be undertaken by the court". In support of this conclusion, I quoted what Black LJ (as she then was) had said in In re K (A Child) (Abduction: Child's Objections) [2015] EWCA Civ 720 at [53], about the In re E approach: “I do not accept that a judge is bound to take this approach if the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an article 13b risk.”

I would emphasise that Black LJ was referring to discounting the possibility that the allegations would give rise to an article 13(b) risk. She was not otherwise diverging from the approach set out in In re E. It is also plain that she was referring to the end of the spectrum, namely when the court was able confidently to discount the possibility that the allegations gave rise to an article 13(b) risk. This is not to dance on pins but is a distinction of substance derived from the court not being in a position to determine the truth of the allegations relied on as establishing the article 13(b) risk. [93] It was for this reason that, in re C at para 39, I commented that “a judge has to be careful when conducting a paper evaluation” of the evidence. The court has to be careful for the reason given by the Supreme Court, at para 36, namely “the inability of the court to resolve factual disputes”. This creates the “tension” there identified between this inability and “the risks that the child will face if the allegations are in fact true”. This led the Supreme Court to adopt the "pragmatic and sensible solution" set out above. In its concluding paragraphs in In re E, the Supreme Court repeated, at para 52:

"Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be." [94] In the Guide to Good Practice, at para 40, it is suggested that the court should first "consider whether the assertions are of such a nature and of sufficient detail and substance, that they could constitute a grave risk" before then determining, if they could, whether the grave risk exception is established by reference to all circumstances of the case. In analysing whether the allegations are of sufficient detail and substance, the judge will have to consider whether, to adopt what Black LJ said in In re K, “the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an article 13(b) risk”. In making this determination, and to explain what I meant in In re C, I would endorse what MacDonald J said in Uhd v McKay [2019] EWHC 1239 (Fam), [2019] 2 FLR 1159, para 7, namely that "the assumptions made by the court with respect to the maximum level of risk must be reasoned and reasonable assumptions" (my emphasis). If they are not "reasoned and reasonable", I would suggest that the court can confidently discount the possibility that they give rise to an article 13(b) risk.” "

Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be."

[28]The method of applying Art 13(b) of the 1980 Hague Convention articulated in Re E thus forms part of the court's general process of reasoning in its appraisal of the exception under Art 13(b) (see Re S (A Child)(Abduction: Rights of Custody)

[2012] 2 WLR 721

), and this process will include evaluation of the evidence before the court in a manner commensurate with the summary nature of the proceedings.

[29]If the court concludes that the assertions of harm are of such a nature and of sufficient detail and substance, that if true they could constitute a grave risk, the court moves on to consider whether protective measures are capable of meeting the level of risk assumed. In undertaking that evaluation, the authorities make clear that the court will be guided by the following principles: i) 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. ii) 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. iii) 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. iv) 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. v) 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. vi) 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. vii) With respect to undertakings, what is required is not simply an indication of what undertakings are offered by the left behind parent as protective measures, but sufficient evidence as to extent to which those undertakings will be effective in providing the protection they are offered up to provide. viii) Within the foregoing context, there is an imperative need for the applicant's proposals for protective measures to be included in the directions for the applicant's statement, including the terms of the undertakings being offered.

[30]Whilst the court retains a discretion to order the return of the subject child where the exception provided by Art 13(b) is established, where the court has concluded that the harm exception is made out and that no protective measures can be put in place that will sufficiently meet the level of risk assumed to exist, it will ordinarily not be appropriate to exercise that discretion in favour of making a return order notwithstanding those conclusions.

Implementation of Return Order

[31]In G v G

[2021] UKSC 9

, the United Kingdom Supreme Court held that an applicant pursuing a protection claim has protection from refoulement (i.e. expulsion or return of an individual to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion per Art 33 of the 1951 Geneva Convention) pending the determination of claim. Accordingly, the Supreme Court was satisfied that a return order granted pursuant to the 1980 Hague Convention could not be implemented until all legal challenges to the decision of the Secretary of State, in respect of which there is an in-country appellate process, have been exhausted.

[32]In Re A and Others (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria)

[2024] EWFC 178

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, having regard to changes to the legislation implemented since the decision of the Supreme Court in G v G comprising the effect of the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 on the relevant provisions of the Procedures Directive and s.77 of the Nationality, Immigration and Asylum Act 2002 as amended by the Nationality and Borders Act 2022, in relation to claims made after 28 June 2022, to the effect that removal to a safe third country can occur pending the determination of an individual's asylum claim.

[33]Within the foregoing context, and in circumstances where as I have noted 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, the current protection claims in respect of the children launched by the paternal grandmother will delay the implementation of any return order made by the court in these proceedings under the 1980 Hague Convention unless the applications in respect of the children are now withdrawn or the appeals are dismissed.

Interim Measures

[34]This situation in turn raises the question of what jurisdiction this court has to make orders in the interim designed to ensure that the children’s welfare is safeguarded and promoted pending the determination of the asylum appeals and, if a return order is made, the implementation of that order. During the course of submissions, s.5 of the 1985 Act and

Art 11 of the Convention

of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereafter “the 1996 Hague Convention”) were canvassed in this context.

[35]Section 5 of the 1985 Act provides as follows with respect to the jurisdiction of the court to make interim directions in proceedings under the 1980 Hague Convention:

“5 Interim powers. Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.”

[36]The phrase “determination of the application” is not defined in the 1985 Act. However, giving the word “determination” its natural meaning in the current context suggests that the phrase refers to the judicial decision that decides the application under the 1980 Hague Convention. This would be consistent with the position that pertains once the court has made a return order in Convention proceedings, after which it will be for the court of the child’s habitual residence to take the decisions necessary to secure the welfare of the child, or not made a return order, after which the domestic court would exercise its substantive welfare jurisdiction. In these circumstances, whilst I did not hear detailed submissions on the point, I am doubtful that s.5 of the 1985 Act provides the court with jurisdiction to make orders “for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application” after the court has determined to make (or not to make) a return order.

[37]Art 11 of the 1996 Hague Convention provides as follows with respect to jurisdiction to take urgent measures of protection in respect of a child who is present in a Contracting State:

“Article 11 (1) In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection. (2) The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation. (3) The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.”

[38]What comprise “any necessary measures of protection” for the purposes of Art 11 is not defined by the 1996 Hague Convention. The Explanatory Report to the 1996 Hague Convention makes clear, at paragraph 68, that the purpose of the jurisdiction in case of urgency is to avoid delays which would be caused by the obligation to bring a request before the authorities of the State of the child’s habitual residence and which might compromise the protection or the interests of the child.

[39]As further made clear, in paragraph 70 the Explanatory Report, the drafters of the Convention deliberately abstained from setting out what measures might be taken on the basis of urgency in application of Art 11 and observed that “urgency” is a functional concept, the urgency dictating in each situation the necessary measures of protection. Within this context, paragraph 6.2 of the Practical Handbook on the 1996 Hague Convention provides that it is a matter for the judicial or administrative authorities in the Contracting State in question to determine whether a particular situation is “urgent” and what measures are “necessary” in consequence of that urgency. The Practical Handbook states as follows regarding the metric against which the situation in question might be measured in order to determine urgency:

“A useful approach for authorities may therefore be to consider whether the child is likely to suffer irreparable harm or to have his / her protection or interests compromised if a measure is not taken to protect the child in the period that is likely to elapse before the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection.”

[40]The foregoing passage from the Handbook emphasises the fact that Art 11 is designed to apply until “the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection.” The Explanatory Report states that the concept of urgency in Art 11 should be interpreted “rather strictly” in circumstances where urgency is the justification for derogating from the general rule of jurisdiction under Arts 5 to 10 of the 1996 Hague Convention.

[41]I am mindful that Brazil is not a signatory to the 1996 Hague Convention. However, in Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention)

[2023] EWCA Civ 659

[2024] 4 WLR 49

, the Court of Appeal confirmed at [57] to [59], that the 1996 Hague Convention applies in this jurisdiction even if the other jurisdiction involved is not a party to the 1996 Hague Convention.

[42]For the reasons set out in detail below, I am satisfied that this court can exercise its jurisdiction under Art 11 of the 1996 Hague Convention in the period between the making of, and the implementation of, a return order in order to take any necessary measures of protection in the interim with respect to each of the children.

DISCUSSION

[43]Having listened carefully to the evidence of the Children’s Guardian, and the helpful and comprehensive submissions of leading and junior counsel, I am satisfied that the mother’s application must be allowed and a return order should be made pursuant to Art 12 of the 1980 Hague Convention requiring the return of Y and Z to the jurisdiction of Brazil. I am further satisfied that orders should be made under the jurisdiction conferred on the court by Art 11 of the 1996 Hague Convention to ensure that the children remain in the care of their mother pending the implementation of the return order. My reasons for so deciding are as follows.

[44]Whilst by virtue of the conduct of the paternal family the background to this matter is somewhat complex, the questions this court is required to answer are straightforward. In light of the matters relevant to the operation of the 1980 Hague Convention that are not in dispute between the parties, as summarised at the outset of this judgment, the court must decide whether Y objects to returning to the jurisdiction of Brazil and, if so, whether the court should exercise its discretion to give effect to that objection, and whether a return order would expose Y and Z to a grave risk of physical or psychological harm or otherwise placement them in an intolerable situation.

Child’s Objections

[45]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.

[46]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.

[47]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.”

[48]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.

[49]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.

[50]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.

[51]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.

[52]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.

[53]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.

[54]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.

[55]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.”

[56]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.”

[57]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.”

[58]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.

[59]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.

[60]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.

[61]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.

[62]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.

Harm

[63]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.

[64]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.

[65]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: i) The children have been in the continuous and primary care of their paternal grandmother and aunt for a significant period. They have developed a strong attachment to their carers, who provide them with stability, emotional support, and a secure environment. ii) The children have not had meaningful direct contact with their mother since 2023. iii) The children are openly hostile towards the mother and express a lack of trust. iv) In light of the prolonged absence of a parental relationship, a forced reunification would represent a profound emotional shock. v) To remove the children from their established caregivers and place them with their mother, whom they do not like and may fear, would place them at grave risk of psychological harm. vi) The sudden and compulsory separation from their aunt and grandmother would destabilise them and cause severe emotional distress. vii) The children would suffer re-traumatization from having to live in an environment where the children fear for their safety or wellbeing, as Y has disclosed physical abuse in the care of her mother whilst in Saudi Arabia.

[66]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.

[67]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.

[68]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.

[69]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.”

[70]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.

[71]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.”

[72]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.

[73]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.

[74]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.

[75]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: i) There was war in Yemen. ii) Brazil is not a safe country and a country in which kidnapping of children takes place (the paternal grandmother confirmed that she was not scared in Brazil but considered the country not to be a safe environment for children). iii) Threats by way of telephone calls and notes had been made by the maternal family stating that the children should be returned to the mother (the paternal grandmother further confirmed that the maternal grandmother had not ever made statements or harassed her in a form that resulted in her life feeling in danger). iv) Y had been “sexually harass” (sic) by the maternal family.

[76]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”.

[77]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: i) In September 2023 the family received threatening phone calls in which it was stated in Arabic and Portuguese that the children would be taken and the family would not be allowed to live in peace. ii) The calls continued, causing the father to suggest that the children be taken for a holiday to visit the paternal aunt in England. iii) The children and the paternal grandmother travelled to the United Kingdom on 3 June 2024 on return tickets. iv) Following the children’s departure, the paternal uncle continued to receive threatening phone calls and contacted the Brazilian police. v) In the circumstances, the father advised the paternal grandmother that it would be better to remain in England.

[78]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.

[79]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.

[80]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.

[81]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: i) In her Initial Contact and Asylum Questionnaire dated 6 June 2024, the paternal grandmother stated telephone calls and notes had been made stating that the children should be returned to the mother. ii) In her asylum interview on 17 December 2024, the paternal grandmother stated that the threats by way of telephone calls commenced after the children had been abducted from Saudi Arabia and the paternal grandmother mentioned no alleged danger prior to the mother being able to gain entry into Brazil in an effort to find the children. Later in the interview the paternal grandmother referred to receiving calls from unknown numbers about “children kidnapping”, which started when she took “custody” of the children. iii) The papers disclosed by the Home Office in respect of the protection claims also record that the paternal aunt stated that the maternal family and the mother had been sending the paternal family" aggressive and threatening". iv) WhatsApp messages, saying they are coming to "kidnap" the children from Brazil. The only WhatsApp message in the bundle that constitutes a threat of the type described is from the paternal grandfather. Whilst it is said that the paternal grandfather simply forwarded one of the messages received by the family, the phone number sending the message appears to be from a Yemeni mobile, it is not in the format of a forwarded WhatsApp message and has no date, rendering the evidentiary value of the message extremely limited.

[82]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.

[83]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.

[84]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.

[85]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.”

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 Woman: That makes me sad 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: Okaaaaay Woman: Good girl [Whispers] Child: [Chocolate?] Child: That’s it [unclear] bathroom, bathroom.”

Child: [Chocolate?]

[86]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.

[87]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.

[88]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.

Implementation

[89]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.

[90]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.

[91]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.

[92]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.

[93]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.”

[94]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.

Interim Protection

[95]In the foregoing context, by virtue of the actions of the adults responsible for the abduction of the children, namely the making of protection claims for the children and the pursuance of appeals following those protection claims being refused by the Secretary of Statement, and the operation of the principle in G v G, there will be a delay before the authorities in Brazil with general jurisdiction can take the necessary measures of protection. Having regard to the matters set out in this judgment I am satisfied that the children remain vulnerable to abduction whilst they are in their mother’s care in this jurisdiction and that the welfare of the children demands that their urgent need for stability, security and consistent maternal care is secured pending the implementation of the return order.

[96]In these circumstances, and whilst mindful of the need to interpret Art 11 rather strictly, I am satisfied in this case that, if the court makes a return order, it can be said the children are likely to suffer irreparable harm or to have their protection or interests compromised if measures are not taken to secure the children in their mother’s care in this jurisdiction in the period that has to elapse whilst the asylum appeals are determined and before the authorities in Brazil with general jurisdiction can take the necessary measures of protection. I am further satisfied that, paradoxically, the delay consequent upon the pending asylum appeals, and the frustration of the implementation of any return order in consequence, creates the urgency for the purposes of Art 11 of the 1996 Hague Convention in this case. Accordingly, having determined to make a return order, I am also satisfied that Art 11 provides the court with jurisdiction during that interregnum also to make urgent orders to ensure the children remain in their mother’s care. Those orders will be as follows: i) The children Y and Z, shall remain in the care of their mother. ii) The father, paternal grandmother and paternal aunt are prohibited from removing Y and Z from the care of the mother, or from any person or organisation into whose care the mother has entrusted the children, including the children’s school. iii) These orders will remain in force until such time as the authorities in Brazil having jurisdiction have taken the measures required by the situation.

[97]I am not satisfied that it is appropriate to make orders in relation to contact with the father or with the paternal grandmother and paternal aunt. For the reasons given above, I am satisfied that the court’s jurisdiction to take interim measures under s.5 of the 1985 Act lapses once the court has made a return order in this case. I am not satisfied that it is appropriate to invoke the jurisdiction under Art 11 of the 1996 Hague Convention for the purposes of making contact orders. I am not satisfied that Y and Z are likely to suffer irreparable harm or to have their protection or interests compromised if measures in relation to contact with the paternal family are not taken in the period that is likely to elapse before the authorities in Brazil with general jurisdiction can take the necessary measures of protection. In any event, given the conclusions of the court regarding the conduct of the paternal family in negatively influencing the children, I am satisfied that the father, the paternal grandmother and the paternal aunt would use any contact as a means of seeking to undermine the mother’s care of the children. Contact will fall to be considered by the courts in Brazil upon the children being returned to that jurisdiction pursuant to the return order this court has made.

CONCLUSION

[98]This was, on any analysis, a most blatant act of child abduction by the paternal family, involving two premeditated abductions, first from Saudi Arabia and then from Brazil. There followed a calculated attempt by the paternal family to conceal the children from the mother and to clothe the paternal grandmother and the paternal aunt with a spurious parental authority. This barefaced instance of child abduction ultimately led the children to living in a single room in a hotel for asylum seekers for over a year, separated from both their parents in a country with which they had no connection and embroiled in asylum proceedings by adults who had no parental responsibility for them. Decisions with respect to medical treatment were also taken by adults without parental responsibility. The conduct of the father, the paternal grandmother and paternal aunt caused each of the children significant emotional harm. The matters relied on by the father and by the paternal grandmother and paternal aunt to make good an exception under Art 13(b) of the 1980 Hague Convention (and which form elements of the protection claims of the paternal grandmother rejected by the Secretary of State and now the subject of appeal) were themselves part of the calculated attempt to retain the children from their mother’s lawful care.

[99]For the reasons set out above, I make the following orders in respect of the mother’s application: i) A summary return order under Art 12 of the 1980 Hague Convention in respect of Y and Z. ii) In circumstances where I am satisfied that the motivation for the paternal grandmother travelling to this jurisdiction, funded by the father and the paternal uncle, and for making claims they did in these proceedings in an effort to satisfy Art 13 of the 1980 Hague Convention, was to prevent the mother resuming lawful care of the children, I direct that a copy of this judgment be disclosed to the Secretary of State for the Home Department, with permission to her to disclose it to the Upper Tribunal, and to the United States Embassy. iii) 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. iv) The children Y and Z, shall remain in the care of their mother. v) The father, paternal grandmother, paternal aunt and paternal are prohibited from removing Y and Z from the care of the mother, or from any person or organisation into whose care the mother has entrusted the children, including the children’s school. vi) These orders will remain in force until such time as the authorities in Brazil having jurisdiction have taken the measures required by the situation. vii) No order as to costs save for detailed assessment of the publicly funded costs.

M v F (Art 13 Thresholds Not Met) [2025] EWHC 2629 (Fam)

BACKGROUND

RELEVANT LAW

Child’s Objections

Harm

(b) ) that:

Implementation of Return Order

Interim Measures

DISCUSSION

Child’s Objections

Harm

Child: [Chocolate?]

Implementation

Interim Protection

CONCLUSION

Cited in 3 later judgments