Buscador de jurisprudencia

The parents met in Portugal in 2018. The mother was a British national and the father a Portuguese national. In 2019 the mother moved to Portugal to live with the father and in December 2021 they had a child together.

The mother claimed that by the time the child was born the relationship was already in difficulties as a result of the father’s coercive conduct towards her. 

In September 2022 the mother brought the child the UK to visit her family. The parents agreed the mother would stay for around a month but in October 2022 the mother informed the father she intended to stay for a longer period. 

Over the next two years the child was retained in the UK and the parents had extensive discussions about where she should live in the future. The father did not begin any proceedings for the summary return of the child to Portugal.

The father visited the UK on a number of occasions and had unrestricted contact with the child. The mother and cild also visited Portugal, on one occasion staying for three months. 

In October 2024, the mother signed an agreement on the basis of the child returning to live in Portugal from January 2025. This was lodged with the Portuguese Court but the mother withdrew in December 2024 and started proceedings in the UK seeking an order that the child would live with her and they would spend four months per year in Portugal.  In February 2025, the father received notice from the Portuguese court that the mother had withdrawn from the agreement. In March 2025, nearly two and a half years after the child was wrongfully retained in the UK, the father filed an application for return under the 1980 Hague Child Convention.

The trial judge ordered the return of the child to Portugal. The mother appealed the decision. 

Appeal allowed. Order for return to Portugal set aside. 

Settlement of the Child - Art. 12(2)

The Trial Judge had erred in his analysis and interpretation of Article 12 and the exercise of discretion was flawed.

Though settlement implies arrangements that are long-term rather than transient, this does not mean that they have to be  “permanent”.

The question to be answered is whether a child is settled in their new environment, a broad concept including not just the physical but also the emotional and psychological. It encompasses, place, home, school, people, friends, activities, opportunities, and time she spent with other family members, including the left-behind parent. 

In this case, the child had established roots in this country, going to nursery, making friends, spending much time with her extended maternal family. But importantly she also had frequent contact with her father and his family.

The mother had not kept the child from the father and his family and the father took no steps to prevent the mother coming and going freely. Although he did not approve of the new arrangements, and sought to change them through negotiation, he accommodated them in his day-to-day plans for the child. The the fact that the child continued to retain links with her father and paternal family in Portugal is a factor that assisted, rather than hindered, her settlement in the United Kingdom.

Regarding the exercise of discretion in settlement cases, the Trial Judge had been unduly dismissive of the difficulties the mother might face in securing her right to reside in Portugal and, despite accepting that there would be a “cumulative” and “negative” effect on the mother’s wellbeing he did not carry out a full and thorough welfare enquiry.

Furthermore, the merits of a settlement exception to return can be strengthened by a significant delay in issuing proceedings for the summary return, even if the parties were engaged in dispute resolution processes during that period. The reasons why the left-behind parent did not issue proceedings promptly are relevant but the Convention’s fundamental principle is the prompt return of an abducted child to their country of habitual residence, and any substantial delay is relevant to the court’s discretion.