TF v LG

Under the 1980 Hague Convention, consent to a child’s removal must be clear and unequivocal, but it may be inferred from words and conduct. A discussion of a possible permanent move is insufficient where the evidence shows that the parties had not reached agreement.

A child’s wish to remain with one parent in another country may amount to a preference rather than an objection to return. The child must object to returning to the country of habitual residence, and the objection must have sufficient strength to engage Article 13.

Where an exception is established, the return discretion is at large. The court must balance Convention objectives, welfare considerations and the nature and strength of the child’s views. No requirement of exceptional circumstances applies.

The father applied under the 1980 Hague Convention for the summary return to Brazil of his 11-year-old daughter, C. The parents, Brazilian nationals, had joint custody following their divorce. C travelled to England in June 2025 to stay with her mother. The mother said that the father had agreed that C would move permanently; the father said that the trip was only a visit.

The father obtained a return order in Brazil and commenced proceedings in England after the mother said that C would not return. The mother relied on consent under Article 13(a) and on C’s objections to return. The central issues were whether the father had consented to C’s removal, whether C objected to returning to Brazil at an age and degree of maturity warranting consideration of her views, and, if either exception applied, how the return discretion should be exercised.

1. Consent. The principles in Re G (Children) [2021] EWCA Civ 139 were applied. Consent is assessed on the civil standard and in the context of family life rather than contractual analysis. It may be inferred from words or conduct, but must be clear, unequivocal, real and operative at the time of removal. The court found that a permanent move had been discussed but remained only a possibility. The father had consented to a visit, not to a permanent move. The Article 13(a) consent exception therefore failed.
2. Acquiescence. There was no evidence that the father acquiesced after C’s arrival. The court did not consider the issue further.
3. Child’s objections. The gateway principles in Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 were applied. C genuinely wished to remain in England and was sufficiently mature for her views to be considered. However, her views amounted to a preference for living with her mother in England, rather than an objection to returning to Brazil. The Article 13 child-objections exception therefore failed.
4. Discretion. Pursuant to Article 12, the court was bound to order summary return. In any event, if an exception had been established, the court would still have ordered return. Applying the broad balancing approach described in Re M [2007] UKHL 55 and Re P (A Child)(Abduction: Child’s Objections) [2024] EWCA Civ 1569, the court considered C’s precarious immigration position, her limited integration and English, her established family life and relationships in Brazil, her relationship with her father, her mother’s uncertain circumstances, her views and the Convention’s objectives. The case for return was compelling and return was in C’s best interests.
5. Order. A summary return order was made. C could complete the school term before returning, with arrangements for safe travel to be agreed or determined by the court if necessary.