Buscador de jurisprudencia

The father was a British national and the mother a Brazilian-Italian national. They had a child who was born in Portugal and who lived there for the first 12 months of her life.  The parents were not married but the father had the equivalent of parental responsibility in Portugal as he was named on the birth certificate.

The mother said the father became verbally abusive after the birth of the child including violent and controlling behaviour and asking her to leave the country with the child. When the mother asked for consent to take the child to England she said that this became another way for the father to exert control over her. 

In May 2025 the mother contacted her local Victim Support Centre. She left Portugal that month without the father’s permission to do so. 

Both parties made cross applications for a child arrangements order in Portugal and a mediation session was scheduled for July 2025. 

The father made an application for the return of the child under the 1980 Hague Convention. The mother argued that the Article 13(1)(b) exception to return applied and, in should it be found otherwise, that protective measures would be required. 

Return ordered with undertakings and protective measures.

Grave Risk - Art. 13(1)(b)

The Judge found that there appeared to be a clear pattern of abusive and insulting behaviour on the part of the father. Taking the allegations at their highest it amounted to a grave risk of psychological harm to the child. However, the Judge was satisfied that, with protective measures in place, the risk on return could be sufficiently ameliorated so that the child would not be exposed to a grave risk within the scope of Art 13 (b).

Undertakings

Regarding the child’s separation from the mother, the Judge found that these risks had now dissipated due to the father’s undertaking to withdraw the criminal proceedings. 

The mother sought a range of protective measures should the return of the child be ordered. The judge reviewed these alongside the father’s offers and agreed upon a list of undertakings and protective measures for 6 months. 

The judge considered it vital to ensure that protective measures were enforceable in advance of return. The mother’s Portuguese lawyers highlighted that a mirror order would take 1-2 months to register whereas the recognition process would take 3 to 4 months. Given the fact that the Courts would soon be closed for judicial holidays the Judge decided a mirror order should be put in place in advance of return.

Non-Convention Issues

The Judge did not agree with the father’s argument that the child must return to the town in which he lived pursuant to Article 11 of the 1996 Hague Convention. Contact between the father and child did not need to take place in this specific town and, ultimately, it was the Portuguese court which would determine the time that the child spent with her father.