The Father v The Mother

In proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980, the Article 13(b) exception has a high threshold. The court must assess the concrete circumstances on return, taking disputed allegations at their reasonable highest where they cannot confidently be discounted, and must consider whether protective or soft-landing measures sufficiently address any risk. Immigration insecurity, financial difficulty, schooling disruption and parental conflict did not cumulatively establish grave risk where the mother could return with support and regularise her status. A child’s objection requires a genuine objection and sufficient age and maturity, but satisfaction of that gateway does not dictate the outcome. The Convention allocates decision-making between jurisdictions and does not determine long-term welfare. A conditional return order was appropriate.

The mother travelled from Portugal to England with her three sons for Christmas, intending to return. She subsequently told the father that she would remain in England with the children. The father applied for their summary return under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The mother accepted that the retention was wrongful but relied on Article 13(b), alleging abuse, financial and immigration insecurity, difficulties in Portugal and the children’s objections. The Portuguese family court remained seized of proceedings concerning the family. Following directions, expert evidence on Portuguese immigration law and a Cafcass wishes and feelings report, the court determined whether return would create a grave risk or intolerable situation, whether the children’s objections justified refusal, and whether any return order should be conditional on the mother securing residence in Portugal.

The application was granted. The wrongful retention was common ground. The court therefore considered the Article 13(b) and children’s-objection exceptions under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

1. Article 13(b). Applying the framework summarised in Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123, the court treated disputed allegations at their reasonable highest where they could not confidently be discounted. It assessed in concrete terms the situation awaiting the children and considered whether protective and soft-landing measures would sufficiently address any risk. The allegations of abuse were not supported sufficiently to establish the exception. The mother’s immigration and financial difficulties, educational disruption, parental conflict and the children’s anxiety did not, cumulatively, amount to physical or psychological harm or an intolerable situation on the footing that she could return with the children, receive twelve months’ financial support and secure residence.
2. The court found that failure to secure a residence permit could create an intolerable situation because the children might be separated from their mother. The return order was therefore properly made conditional on the mother securing a Portuguese residence permit and making all reasonable efforts in good faith to do so.
3. Children’s objections. Applying Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 [2016] Fam 1, the court found that A, aged 11, had a genuine objection and sufficient age and maturity for his views to be considered. The objection’s weight was reduced by its crystallisation after the retention, the influence of the mother’s views, A’s age and the limited encouragement of contact with the father. M and C did not establish objections requiring refusal.
4. The court applied the jurisdictional purpose and principles of comity described in B v B [2014] EWHC 1804 (Fam). The return order did not determine the children’s long-term welfare or care arrangements. Those matters remained for the Portuguese courts. The conditional approach was consistent with the example in M v F, U, A [2022] EWHC 214 (Fam). All three children were ordered to return, with return taking effect within seven days after the residence condition was satisfied. The order was not made conditional on a Portuguese court first varying the existing shared-care order.

not stated in the judgment.