M v F (No2)(Implementation of Return Order) [2026] EWHC 324 (Fam)

[2026] EWHC 324 (Fam)Case No FD25P00187
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/01/2026
Before
MR JUSTICE MACDONALD
Between
MApplicantFFirst RespondentPASecond RespondentPGThird RespondentMS RENTON KC, MS GAUNT appeared for ApplicantMR OSBORNE appeared for Children's Guardian.
JUDGMENT(Approved)
Digital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.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, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]MR JUSTICE MACDONALD: These are Hague Convention, 1980 proceedings concerning two children, Y, a girl aged 8 years and Z, a girl aged 5 years. This matter again comes before the court, following the court making a return order in respect of the children.[2]The reasons for the court making a return order in respect of the children are set out in the judgment of this court, handed down on 17 October 2025. The background to the matter is set out in that judgment (see M v F (Art 13 Thresholds Not Met) [2025] EWHC 2629 (Fam)). The mother's application arose from the removal of the children from the jurisdiction of the Federative Republic of Brazil. The mother asserted that the children were wrongfully removed from Brazil by the paternal grandmother on 3 June 2024, and brought to this jurisdiction, having prior to that time been abducted to Brazil by the father from the jurisdiction of Saudi Arabia.[3]The court held, for the reasons set out in the judgment, that that was a blatant act of child abduction. Within that context, this court acceded to the mother's application for the summary return of the children to Brazil, having determined that none of the exceptions under the 1980 Hague Convention were established. The court had placed the children into the mother's care on the first day of the final hearing, pursuant to section 5 of the Child Abduction Custody Act, 1985, where they have remained to date.[4]As at the date of the judgment, the paternal aunt had been granted refugee status in the United Kingdom. The paternal grandmother had a pending appeal with respect to her protection claim for asylum, refused by the Secretary of State, in which the children are named as dependents. Having made a return order at paragraph 8 of my judgment, I said the following:
"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."
[5]Within the context I have described, the paternal grandmother was ordered by 4.00 pm, on Monday, 27 October 2025, to confirm whether or not she was willing to withdraw the protection claims made on behalf of the children and, if so, to confirm that she has done so.[6]On 18 November 2025, the second and third respondent's former solicitor provided the following information via an email:
"I have chased my client's immigration solicitor via email, and have also attempted to call his mobile and landline, but have not managed to speak to him. I will continue to chase. He did, however advise when the applications were lodged to withdraw the children's asylum claims, but the Appeal Tribunal can take time to deal with applications. You were advised that the applications were lodged by our client through her representative, and she has acted in accordance with the court's request and, therefore, not clear on what else you require her to do at this stage, as the matter appears to be in the hands of the Tribunal. The court may be able to provide an update on status of it and timescales, et cetera."
[7]A further update was provided by the paternal grandmother's solicitors on 21 November 2025, which stated that, "My client received an update from her asylum lawyer that the tribunal portal is still showing the applications as pending."[8]The paternal grandmother, who appears in person, has today again confirmed to the court that she has applied to withdraw the children's asylum claim. On the information before the court therefore, namely the paternal grandmother's statement today, and the communications received from her solicitors before they came off the record, I am satisfied that the Tribunal is now seized of an application to withdraw the protection claims made on behalf of the children, albeit it would appear that the Tribunal has yet to determine those applications.[9]Within the context that I have so far described the mother has not, to date, felt able to leave the country with the children, as she is lawfully entitled to do pursuant to the return order made by this court, pending confirmation that the Tribunal has granted the applications to withdraw the children's claims. This is now placing the mother in an increasingly difficult position, in circumstances where she and the children have had to remain in England on limited funds. The situation is also urgent by reason of the fact that the mother was admitted to this jurisdiction on a limited visitor's visa, which is due to expire in March 2026.[10]It has not been possible, to date, to obtain from the Immigration Tribunal at Hatton Cross any information as to the progress of the application to withdraw the children's asylum claims, nor any likely timescales for the determination of those applications. Accordingly, in the absence of any indication from the Tribunal as to when the application to withdraw the children's claims will be dealt with, the mother now applies to the court for directions regarding the implementation of the return order, made as long ago as October 2025.[11]Having heard the submissions of Ms Renton and Ms Gaunt on behalf of the mother, the information provided by the paternal grandmother, and from Cafcass, I am satisfied that there is now, in light of the circumstances I have set out in this brief ex tempore judgment, nothing to prevent the mother from lawfully removing the children from the jurisdiction, pursuant to the return order that has been made by this court under the 1980 Hague Convention.[12]It is the case that whilst an asylum claim is pending pursuant to s.77 of the 2002 Act, the Secretary of State for the Home Department is prohibited from removing an asylum seeker, by way of exercise of a power provided in the Immigration Act. Section 77 providing as follows:
"77. No removal while claim for asylum pending (1) While a person’s claim for asylum is pending he may not be (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (2)In this section— (a) 'claim for asylum' means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and (b) a person’s claim is pending until he is given notice of the Secretary of State’s decision on it. (4) Nothing in this section shall prevent any of the following while a claim for asylum is pending— (a) the giving of a direction for the claimant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the claimant, or (c) the taking of any other interim or preparatory action. (5) Section 15 of the Immigration and Asylum Act 1999 (c. 33) (protection from removal or deportation) shall cease to have effect."
[13]The same position applies where there is an appeal pending. Pursuant to s.78 of the Act, the Secretary of State for the Home Department is also prohibited from removing an individual from the United Kingdom, by way of exercise of powers under the Immigration Act whilst there is an appeal pending:
"78.No removal while appeal pending (1) While a person’s appeal under section 82(1) is pending he may not be— (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (2) In this section “pending” has the meaning given by section 104. (3) Nothing in this section shall prevent any of the following while an appeal is pending— (a) the giving of a direction for the appellant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the appellant (subject to section 79), or (c) the taking of any other interim or preparatory action."
[14]The obligations in ss. 77 and 78 of the 2002 Act bind the Secretary of State for the Home Department. The provisions preventing removal under those sections are preventing removal from the United Kingdom in accordance with a provision of the immigration legislation. The question of removal and return with which this court has been concerned, is that under the 1980 Hague Convention as given effect in domestic law by the Child Abduction and Custody Act 1984.[15]Further, and importantly, there is nothing in the statutory provisions that I have recounted, that would appear to prevent an applicant from leaving (as distinct from being removed from) the jurisdiction during the course of their application, albeit that it should be noted that that action will have certain consequences under the immigration rules.[16]Specifically under paragraph 333C of the immigration rules, an asylum claim can be withdrawn or considered to be withdrawn in a number of situations. The effect of the withdrawal is to bring to an end consideration by the Secretary of State for the Home Department of the asylum claim. Paragraph 333C of the immigration rules provides as follows:
"Withdrawal of applications 333C. If an application for asylum is withdrawn either explicitly or implicitly, it will not be considered. (a) An application will be treated as explicitly withdrawn if the applicant signs the relevant form provided by or on behalf of the Secretary of State, or otherwise explicitly declares a desire to withdraw their asylum claim. (b) An application may be treated as implicitly withdrawn if the applicant: (i) fails to maintain contact with the Home Office or provide up to date contact details as required by paragraph 358B of these Rules; or (ii) leaves the United Kingdom (without authorisation) at any time before the conclusion of their application for asylum; or (iii) fails to complete an asylum questionnaire as requested by or on behalf of the Secretary of State; or (iv) fails to attend any reporting events, unless the applicant demonstrates within a reasonable time that the failure was due to circumstances beyond their control; or (v) fails to attend a personal interview required under paragraph 339NA, unless the applicant demonstrates within a reasonable time that that failure was due to circumstances beyond their control. (c) The applicant’s asylum record will be updated to reflect that the application for asylum has been withdrawn."
[17]It will be apparent from the terms of paragraph 333C of the Immigration Rules that, having regard to the application to withdraw the children's claims, it might be said that, for the purposes of paragraph 333C(a), that an explicit declaration of a desire to withdraw the claims has already been made. In any event, I am satisfied that there is nothing in the Immigration Rules to suggest that the children are not entitled to leave the jurisdiction upon an application to withdraw having been made by the applicant in a claim in which the children are named as dependents. Although, as I say, that will have the effect under that rule that their claims will be treated as withdrawn.[18]In this case, in the circumstances out in my previous judgment, the court was satisfied that the paternal grandmother and the paternal aunt caused an asylum claim to be made on the children's behalf, without having any authority to do so. They not having parental responsibility for the children. Following the final hearing, the paternal grandmother gave an undertaking to this court to withdraw the applications for the children's asylum status. She has confirmed, as have her former lawyers, that that application has been made. This court made a return order providing the mother with the authority to return the children to the jurisdiction of Brazil. The mother, who has parental responsibility for the children, now seeks to return the children to that jurisdiction, pursuant to that return order.[19]The obligations on the Secretary of State for the Home Department, and on an applicant for asylum under the immigration legislation with respect to leaving the jurisdiction during the pendency of a claim or an appeal are different. Within the context of the legal framework that I have set out in this judgment, I am satisfied in the circumstances that there is now nothing preventing the mother from removing the children from the jurisdiction of England and Wales, pursuant to the return order made by this court under Art 12 of the 1980 Hague Convention.[20]I accept, as I say, that it is clear from the Immigration Rules that this action will have the effect of bringing the children's claims for asylum to an end, as they will be leaving the United Kingdom without authorisation from the immigration authorities, at a time before the conclusion of their applications for asylum. However, that is the outcome that this court has countenanced by accepting an undertaking from the paternal grandmother, and the paternal grandmother having complied with that undertaking, it is an outcome that will eventually follow from the paternal grandmother's application to withdraw the proceedings in respect of the children.[21]In all the circumstances, I am satisfied that subject to the Tipstaff orders and Port alerts being discharged, the mother is now able to return the children to the jurisdiction of Brazil, pursuant to the return order I have made. I will make an order recording that conclusion, and declaring that the children are entitled to leave the jurisdiction pursuant to the authority granted by the return order under Article 12 of the 1980 Hague Convention.[22]I also reiterate the orders discharging the Tipstaff orders and the Port alerts. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk This transcript has been approved by the Judge