De Andrade v De Andrade

De Andrade v De Andrade

The mother's defence of consent was not made out on her own evidence; the grave risk defence failed due to undertakings by the father and the lack of evidence of risk; the children's wishes did not amount to an objection under the Convention. Therefore, no defence to return was established and the children must be returned to Portugal.

Parties
Applicant / Father: Paulo de Andrade; Respondent / Mother: Carla de Andrade
Jurisdiction
England and Wales
Judgment Date
11 June 2015
Procedural Posture
Hague Convention Child Abduction Application / Judgment After Hearing, Order by Consent
Outcome
Order for return of children to Portugal by consent, with provision for mediation and possible non-enforcement if agreement reached.
Legal Topics
International Child Abduction, Hague Convention, Child Custody, Consent Under Hague Convention, Grave Risk Defence, Children's Objections
Family Law International Law International Child Abduction Hague Convention Child Custody Consent Under Hague Convention Grave Risk Defence Children's Objections

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Parties

Paulo de Andrade

Applicant / Father

Carla de Andrade

Respondent / Mother

Procedural Posture

Hague Convention Child Abduction Application / Judgment After Hearing, Order by Consent

Legal Issues

  1. 1 Whether the children were wrongfully retained in England under the Hague Convention
  2. 2 Whether the father consented to the children living in England
  3. 3 Whether return to Portugal would expose the children to grave risk of harm

Ratio Decidendi

The mother's defence of consent was not made out on her own evidence; the grave risk defence failed due to undertakings by the father and the lack of evidence of risk; the children's wishes did not amount to an objection under the Convention. Therefore, no defence to return was established and the children must be returned to Portugal.

Court Disposition

Order for return of children to Portugal by consent, with provision for mediation and possible non-enforcement if agreement reached.

Orders

  • Children to return to Portugal not later than 22 July 2015 unless parties agree otherwise through mediation.
  • Father to provide undertakings regarding accommodation, non-harassment, and distance from mother and children until Portuguese court hearing.