JOSELIA FELIX DA SILVA v ANTONIO DEUZINHO PEREIRA JUNIOR

Consent to international travel does not amount to consent to permanent removal where the surrounding documents and circumstances contemplate a temporary trip and return. A wrongful retention requires return under Article 12 unless an Article 13 defence is established.

Article 13(b) requires assessment of the risk arising on the proposed return, including protective arrangements and undertakings. A child’s objection must be more than a preference. Even where an objection and sufficient maturity are established, the court retains a discretion. That discretion requires consideration of the objection’s strength and authenticity, welfare consequences, and wider Convention considerations, including prompt restorative return, home-country decision-making, comity and deterrence.

The mother applied under the Hague Convention for the return of the parties’ nine-year-old child to Portugal. The parents, both Brazilian nationals, had lived in Portugal for many years. The child travelled to England with his father pursuant to documents signed in Portugal, but remained in England after the agreed return period.

The father resisted return on the grounds of grave risk under Article 13(b) and the child’s objections under Article 13. The court considered the meaning and effect of the travel consents, the alleged physical abuse, the child’s expressed views, the Cafcass evidence, and the arrangements proposed for the child’s return.

1. Wrongful retention and consent. The documents were to be read together. They contemplated a temporary trip from Portugal to England and France, followed by return. The father’s undertaking to return the child by 12 September 2021 was inconsistent with consent to longer-term removal. The child was habitually resident in Portugal, the mother held and exercised rights of custody, and the retention was wrongful. Return was therefore required under Hague Convention Article 12 unless a defence was made out.
2. Grave risk. The alleged beatings were treated with considerable scepticism, although no final finding was required. In any event, the proposed return would be with the father, who would continue caring for the child until the first Portuguese hearing. The mother undertook not to remove the child from the father’s care or contact him pending that hearing. There was consequently no grave risk of harm or intolerable situation under Article 13(b).
3. Child’s objections. The word objects in Article 13 denotes more than a wish or preference. Establishing an objection and sufficient age and maturity merely opens a discretion; it does not create an automatic bar to return.
4. In exercising that discretion, the court considered the nature and strength of the objection, its authenticity and possible influence by the abducting parent, its relationship to welfare considerations, and the general Convention considerations identified in Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam) and G (Abduction: Consent/discretion) [2021] EWCA Civ 139.
5. The child’s objection was weak and appeared influenced. It was unclear whether he objected to Portugal itself or to leaving his father and living with his mother. Return with his father would cause no significant welfare harm, and Portuguese proceedings could address welfare issues promptly. The court ordered the child’s immediate return to Portugal.