Buscador de jurisprudencia

The father was a Portuguese national and the mother a British national. They met in Portugal in 2018. In 2019 the mother moved to Portugal and they began living together.

They had a child in 2021 who was a dual Portuguese-British national and age 3 at the time of the hearing. 

In September 2022 the mother and child travelled to the UK. The trip was planned to last for around one month though no return date was fixed. In October 2022 the mother informed the father that she would remain in the UK with the child for a longer period. 

The parents went through two rounds of mediation. In October 2024 the parents signed an agreements setting out future care for the child but the mother later withdrew. 

The father travelled to the UK 33 times since the wrongful retention and he also went back to Portugal with the child six times, the longest period of time being for three and a half months The child had homes with both parties in both countries. 

In March 2025 an application under the 1980 Hague Abduction Convention for the return of the child was issued. 

The mother argued that the child was now settled in the UK (Article 12) and that her return to Portugal would put her at grave risk of physical or psychological harm (Article 13(1)(b)).

Return ordered. The child was not settled in the UK, within the meaning of Article 12(2), nor was there a grave risk of harm to the child on return to Portugal within the meaning of Article 13(1)(b).

Settlement of the Child - Art. 12(2)

The mother argued that the child was settled in the UK. She noted her close relationships with the maternal family who live nearby, the fact that she is fluent in English and speaks limited Portuguese, her extra-curricular activities and network of friends, and the regular visits from her father and the continuing close relationship she had with him.

The father argued that, given the child’s young age, her sense of security came from living with the mother, not from living in the UK, and that she only started nursery school after proceedings were issued by the father. 

The expert report did not find the child to be settled but rather ‘becoming settled’ or somewhat settled’. 

The Judge held that the child was not yet settled in the UK. The child had not received a consistent message as to whether she would continue to live in the UK or Portugal. Her young age was a relevant factor as she was not in full-time education and would derive her sense of emotional and psychological settlement from her relationship with her parents more than from any particular location.

Finally, the Judge concluded that the lack of settlement was compounded by the child’s six visits to Portugal (one of which was three and a half months long). The child was not of an age to be able to distinguish one country to be her home and one where she travels for holiday. Further, she had some ability to speak and understand Portuguese and a large extended family there.

The father had not simply waited for two and a half years to seek the return of the child, he had done so as soon as she was

wrongfully retained and continued amicably and via non-court means. Crucially, he was also continuously reassured until very recently that the mother would return to Portugal, and believed that until the mother reneged on their agreement.

Given the unusual facts of the case, even if the child had been found to be settled in the UK, the Judge would have exercised his discretion to order her return to Portugal.

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

The mother raised concerns in respect of domestic abuse, housing issues, her immigration position, and the effect on her mental health. Taking the allegations as a whole, the Judge held that their cumulative effect would not constitute a grave risk of harm to the child. 

Regarding domestic abuse, the Judge acknowledged the seriousness of the allegations but did not consider that, even taken at their highest, they constituted a grave risk to the child.

Though there was some evidence to suggest that a return to Portugal would have a negative effect on the mother’s mental wellbeing, this did not support a conclusion that the effect would be sufficient as to establish a grave risk to the child. 

Furthermore, the Judge held that, even if he was wrong in this conclusion, he would be satisfied that the protective measures offered were sufficient to mitigate the harm.