High Court orders return of children to Portugal

Family Law|September 15th 2015

The High Court judge has approved a father’s application for the return of his two children to Portugal.

In De Andrade v De Andrade, the father and mother were Portuguese citizens who spent a few years living in England. During that time, their eldest child was born. Their second child was born after the couple had returned to live in Portugal.

The parents’ relationship broke down and they began to live separately, but they both continued to care for the children. In late 2014, the mother moved to England alone and settled in Scunthorpe, North Lincolnshire for reasons not specified in the judgment.

Early the following year, the father and the two children joined the mother in England and the children were enrolled in a Scunthorpe school. While the parents did not resume their romantic relationship, the family lived together in a situation described as “relatively harmonious”.

This arrangement was soon “blown apart” when the daughter told people at her school that her father had been abusive. Consequently, the mother asked him to leave the house they lived in and sought a child arrangements order in a local court so she could keep the children away from him. Social workers also got involved.

However, the father claimed that he had only brought the children to England on a temporary basis, and the mother’s application indicated that she wanted to keep them in the country more permanently. He said that this constituted “a wrongful retention” under the Hague Convention on the Civil Aspects of International Child Abduction.

The mother objected. She claimed that the father deliberately brought the children to England with the intention of them staying long-term, and that this constituted consent. She also argued that, even if he had not agreed, a return to Portugal would expose the children to “a grave risk of physical or psychological harm”.

Sitting at the Royal Courts of Justice in London, Mr Justice Holman noted that the mother’s evidence seemed to indicate that consent had not in fact been given. She had claimed in her witness statement that the father’s reaction to her move was that “the children could not come here to live and he would not allow it”.

If the children and their mother returned to Portugal, the father said he would “keep completely out of the way” until contact could be established by a local court.

The judge said that “no defence to return under the Convention can succeed” in this case and he was therefore “required to order the return of the children to Portugal forthwith”.

However, Mr Justice Holman said that the parents had since reached a private agreement to arrange “appropriate” contact between the father and children via mediation. If this was successful, the father said he would not seek the enforcement of the judge’s return order.

To read the judgment in full, click here.

Photo of Scunthorpe by David Wright via Flickr

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