When Family Law and Asylum Collide

The Case That Tested the Limits of Protection

When international custody disputes overlap with asylum claims, the law faces an impossible question: should a child be returned to their home country — or protected from it?

In M v F (Art 13 Thresholds Not Met) [2025] EWHC 2629 (Fam) (17 October 2025), the High Court ordered the return of two children to Brazil despite ongoing asylum appeals. It’s a case that shows how carefully judges balance urgency, protection, and the rights of both parents when borders — and beliefs — collide.

What Happened

The case involved two young children, aged eight and five, who were taken from Brazil to England by their paternal grandmother after a long and tangled history of court orders across Saudi Arabia and Brazil.
The mother held custody rights under a Saudi court order, but the father had previously abducted the children from Saudi Arabia to Brazil — and later, his mother brought them to the UK.

When the mother applied for their return under the 1980 Hague Convention on Child Abduction, the grandmother and father tried to resist. They argued that the children:

Objected to going back (Article 13 – child’s objections), and
Would face a grave risk if returned (Article 13(b)).

To complicate things further, the grandmother lodged asylum claims for herself and the children — even though she didn’t have parental responsibility.

The Court’s Decision

Mr Justice MacDonald found that the removal from Brazil was wrongful and ordered that the children be returned there.
The defences failed because:

The children’s wishes were preferences, not objections. Saying “I want to stay here with my friends” isn’t the same as objecting to a return home.
There was no grave risk of harm. The alleged threats and abuse were vague, inconsistent, and unsupported by evidence.
Asylum claims couldn’t block the order. While the return is delayed until the asylum appeals are resolved, it doesn’t prevent the court from making a return order.

Importantly, the Court used powers under the 1996 Hague Convention to protect the children in the meantime. They must stay with their mother in England, and the paternal family is banned from removing them until Brazilian authorities take over.

The legal framework the Court applied

Child’s objections: two-stage test per Re M (Republic of Ireland) [2015] EWCA Civ 26: (1) gateway—does the child object (not merely prefer) and have sufficient age/maturity? (2) discretion—should the Court nonetheless order return?
Art 13(b) grave risk: approach in Re E [2012] 1 AC 144 and Re A (Art 13(b)) [2021] EWCA Civ 939—assess whether asserted harms, if true, could reach grave risk; only then consider protective measures; the Court may confidently discount allegations lacking substance.
Implementation & asylum: G v G [2021] UKSC 9 protects against refoulement while in-country appeals are pending [31] . Re A & Ors [2024] EWFC 178 confirms returns can proceed to a safe third country pending asylum—but Brazil isn’t designated safe here, so the return cannot be implemented yet.
Interim powers: s.5 of the 1985 Act for directions before determination; after making the return order, the Court used Art 11 of the 1996 Convention (urgent protective measures) to secure the status quo pending implementation, even though Brazil isn’t a party—the 1996 Convention still applies in England.

Why You Should Care

Cross-border child cases aren’t just about law — they’re about lives. This decision shows:

The law prioritises stability. Children should not become pawns in legal manoeuvres or asylum claims made by relatives without authority.
Asylum and family law intersect — but don’t override each other. Courts can still make return orders even if asylum claims are pending.
Protective measures matter. The 1996 Hague Convention allows judges to keep children safe during the “in-between” period before a return is carried out.

For parents facing international disputes, it’s a reminder to act quickly, get the right legal advice early, and understand how international conventions work together to protect children.

Paradigm Insight

“This judgment reinforces the importance of acting fast and focusing on evidence, not assumptions,” says Frank Arndt, Senior Partner at Paradigm Family Law.
“It’s also a reminder that misuse of asylum or wrongful removal won’t defeat a Hague return. The Court’s pragmatic use of the 1996 Convention provides a roadmap for managing complex cases where safeguarding and international law overlap.”

If you’re dealing with an international custody issue — especially where multiple countries, court orders, or asylum claims are involved — early specialist advice is vital.

Our international family law team has experience across Europe, the Middle East, and South America. We act for parents, guardians, and relatives in urgent Hague Convention and cross-border disputes.

Speak to a Specialist

Paradigm Family Law, has an internationally recognised and award winning team of family lawyers. We work on a fixed-fee basis because we believe certainty is key. Our partnership with Whatwouldajudgesay.com aligns perfectly with that principle—bringing transparency and structure to one of life’s most difficult transitions.

If you’re considering divorce or separation or Hague Child Abduction cases and want to better understand your legal position, speak to us. An early judicial view could guide you forward.

Call Frank or Evelyn to discuss and explore ways in which we can help. Paradigm Family Law offers a free initial consultation with a top-rated family lawyer and our fixed fee solutions cover financial or children proceedings from start to finish.

Call us on 01904 217225 or 020 3637 4967 or email us info@paradigmfamilylaw.co.uk