CA-2025-001871 - [2025] EWCA Civ 1382

The second paragraph of Article 12 has been considered in a number of earlier cases. The starting point is the judgment of Bracewell J in Re N (Minors) (Abduction) [1991] 1 FLR 413. At page 417-8, she posed the central question:

“what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal presumptions reflect the norm, and the presumption under the Convention is that children should be returned unless the mother can establish the degree of settlement which is more than mere adjustment to surroundings. I find that word should be given its ordinary natural meaning, and that the word ‘settled’ in this context has two constituents. First, it involves a physical element of relating to, being established in, a community and an environment. Secondly, I find that it has an emotional constituent denoting security and stability.”

As to the meaning of the phrase “new environment”, Bracewell J continued:

“The word 'new' is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother, which has always existed in a close, loving attachment. That can only be relevant insofar as it impinges on the new surroundings.”

In this Court in Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 FLR 169, Thorpe LJ analysed the defence in these terms:

“50.

There must be at least three categories of case in which the passage of more than twelve months between the wrongful removal or retention and the issue of proceedings occurs. First there are the cases demonstrating, for whatever reason, a delayed reaction, short of acquiescence, on the part of the left behind parent. In that category of case the court must weigh whether or not the child is settled and whether nevertheless to order return having regard to all the circumstances, including the extent of the plaintiff's delay and his explanation for delay. On the other side of the case there may be no misconduct on the part of the defendant beside the wrongful removal or retention itself.

51.

In other cases concealment or other subterfuge on the part of the abductor may have caused or contributed to the period of delay that triggers Article 12(2). In those cases I would not support a tolling rule that the period gained by concealment should be disregarded and therefore subtracted from the total period of delay in order to ascertain whether or not the twelve-month mark has been exceeded. That seems to me to be too crude an approach which risks to produce results that offend what is still the pursuit of a realistic Convention outcome.

52.

In his skeleton argument for the hearing below Mr Nicholls offered this conclusion:

‘Each case should be considered on its own facts, but it will be very difficult indeed for a parent who has hidden a child away to demonstrate that it is settled in its new environment and thus overcome the real obligation to order a return.’

53.

I would support that conclusion. A broad and purposive construction of what amounts to "settled in its new environment" will properly reflect the facts of each case, including the very important factor of concealment or subterfuge that has caused or contributed to the asserted delay. There are two factors that I wish to emphasise. One relates to the nature of the concealment. The other relates to the impact of concealment on settlement.

…

57.

…. To consider only the physical element is to ignore the emotional and psychological elements which in combination comprise the whole child. A very young child must take its emotional and psychological state in large measure from that of the sole carer. An older child will be consciously or unconsciously enmeshed in the sole carer's web of deceit and subterfuge. It is in those senses that Mr Nicholls' proposition holds good.

…

59.

The third category of case might be termed manipulative delay, by which I mean conduct on the part of the defendant which has the intention and effect of delaying the issue of proceedings over the twelve-month limit. An instance is the Canadian case of Lozinska v. Bielwaski [1998] 56 OTC 59. In ordering the return of the child the court held that the father had engineered the delay in the proceedings in order to invoke Article 12(2). The court accordingly ruled he could not take advantage of the delay he had created. In this category of case the rejection of the defence comes closer to the application of a principle of disregard than to arriving at the same result by a broad and purposive construction of the asserted settlement….

…

61.

… I would unhesitatingly uphold the well-recognised construction of the concept of settlement in Article 12(2): it is not enough to regard only the physical characteristics of settlement. Equal regard must be paid to the emotional and psychological elements. In cases of concealment and subterfuge the burden of demonstrating the necessary elements of emotional and psychological settlement is much increased. The judges in the Family Division should not apply a rigid rule of disregard but they should look critically at any alleged settlement that is built on concealment and deceit especially if the defendant is a fugitive from criminal justice.”

To what extent does it have to be shown that the child’s settlement in the new environment is “permanent”? In Re S (A Minor) (Abduction) [1991] 2 FLR 1, Purchas LJ (at page 24C) indicated that what had to be demonstrated was “a long-term settled position in the environment”. In Re N (Minors) (Abduction)  at page 418B-C, Bracewell J, having cited Purchas LJ’s words, observed:

“The phrase 'long-term' was not defined, but I find that it is the opposite of 'transient'; it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent in so far as anything in life can be said to be permanent.”

The first part of this sentence – “long-term … the opposite of transient” – has been fully endorsed and followed in subsequent cases. The last words of this observation – “permanent, insofar as anything in life can be said to be permanent” – have received academic criticism as “going too far”– see Dicey, Morris and Collins “The Conflict of Laws”, 16^th edition, para 20-117 and Lowe, Everall and Nicholls “International Movement of Children”, 2^nd edition, para 22.22. In more recent cases, judges at first instance have held that the fact that the immigration position of the mother and child in this country was uncertain did not prevent the child having acquired the necessary degree of settlement under Article 12(2) – see Re C (Child Abduction: Settlement) [2006] EWHC 1229 (Fam), [2006] 2 FLR 797 (Sir Mark Potter P) and Re E (Abduction: Intolerable Situation) [2008] EWHC 2112 (Fam), [2009] 2 FLR 485 (Moylan J).

In F v M and N (Abduction: Acquiescence: Settlement) [2008] EWHC 1525 [2008] 2 FLR 1270, Black J (at paragraph 66) gave this warning:

“Plainly one must have proper regard to the authorities as they have interpreted Article 12 but I would resist the development of an unduly technical approach to the question of settlement, or indeed acquiescence. The Hague Convention is designed to establish procedures to ensure the prompt return of children to their State of habitual residence and our courts have geared themselves to providing a speedy resolution of Hague disputes. Whilst I appreciate that it is no longer possible in settlement cases to return a child almost as soon as he or she has arrived here wrongfully, prompt resolution of the child's future is still required. The more complexity and sophistication that attaches to the Articles of the Convention, the longer it takes courts to determine cases and the more appeals there are likely to be”.

Some years later, as Black LJ, she reiterated this view in a case about the child’s objections defence in Re M and others (Children) [2015] EWCA Civ 26 [2016] Fam 1, expressing concern about the “many technical and sophisticated legal arguments” which had been generated about the interpretation of the Convention and observing (at paragraph 13) that “technicality of this sort gets in the way of the objectives of the Convention”.

In Re B (A Child) [2018] EWHC 1643 (Fam) at paragraph 41, Williams J summarised the principles relating to the settlement defence under Article 12 established by previous cases in the following terms:

“(i)

The proceedings must be commenced within one year of the abduction. The making of a complaint to police or an application to a Central Authority does not suffice.

(ii)

The focus must be on the child. Settlement must be considered from the child’s perspective, not the adult’s. The date for the assessment is that date of the commencement of proceedings not the date of the hearing. This is aimed at preventing settlement being achieved by delay in the process.

(iii)

Settlement involves both physical and emotional or psychological components. Physically, it involves being established or integrated into an environment compromising a home and school, a social and family network, activities, opportunities. Emotional or psychological settlement connotes security and stability within that environment. It is more than mere adjustment to present surroundings.

(iv)

Concealment and delay may be relevant to establishing settlement. Concealment is likely to undermine settlement. Living openly is likely to permit greater settlement. The absence of a relationship with a left behind parent will be an important consideration in determining whether a child is settled.

(v)

A broad and purposive construction will properly reflect the facts of each case – it does not require a 2 stage approach but must, to use a probably over-used expression involve a holistic assessment of whether the child is settled in its new environment. It has to be kept in mind that the settlement exception is intended to reflect welfare. The Article 12 settlement exception of all the exceptions is most welfare focused. The underlying purpose of the exception is to enable the court in furtherance of the welfare of the child to decline a summary return because imposing a summary return (i.e. without a more detailed consideration of welfare) might compound the harm caused by the original abduction by uprooting a child summarily from his by now familiar environment.”

At paragraph 42, he added:

“…there is clearly a degree of overlap between the concepts of settlement and habitual residence.  Settlement does not require a complete settlement, any more than habitual residence requires full integration.  Settlement is plainly an evaluation which is, to some degree, subjective.  There will be a spectrum ranging from the obviously and completely settled to the very unsettled.  In between there are many possibilities.”

And at para 57(3)(c):

“In the same way that habitual residence does not require complete integration or permanence so settlement does not necessarily require that the child is fully settled or views their situation as permanent.”

Most recently, Harrison J in Re G and B (Children) (Abduction: Settlement: Grave Risk: Ukraine) [2025] EWHC 795 (Fam) said (at para 50):

“In common with Williams J in Re B (A Child) [2018] EWHC 1643 (Fam) and Robert Peel QC (as he then was) in AX v CY (Article 12 Settlement) [2020] EWHC 1599 (Fam) [2020] 2 FLR 1257, I consider that the question of settlement should be considered 'holistically', not in stages. The court must take into account all of the relevant circumstances bearing in mind that within the confines of a summary process the picture is likely to be incomplete. Information about the child's circumstances prior to an abduction can be relevant to the issue. The court's primary focus is on the question of whether settlement has been achieved 'in a new environment' as opposed to with the abducting parent. Concealment and deceit are highly relevant to the issue, but not determinative. The severance of a pre-existing parental relationship is also very relevant, but again not determinative … The court must consider whether the child has become established in a new environment on a permanent or long-term, as opposed to transient, basis: Re N.”

The question as to whether a child who has been found to be settled within her new environment within the meaning of Article 12 may nonetheless be returned in the exercise of the court’s discretion under the Convention was resolved by the House of Lords in Re M (Zimbabwe) [2007] UKHL 55. Baroness Hale of Richmond, with whom the majority of the other members of the House agreed, said at paragraph 31:

“I have reached the conclusion, not without considerable hesitation, that article 12 does envisage that a settled child might nevertheless be returned within the Convention procedures. The words "shall...unless" leave the matter open. It would be consistent with all the other exceptions to the rule of return. It would avoid the separate and perhaps unfunded need for proceedings in the unusual event that summary return would be appropriate in a settlement case. It recognises the flexibility in the concept of settlement, which may arise in a wide variety of circumstances and to very different degrees. It acknowledges that late application may be the result of active concealment of where the child has gone. It leaves the court with all options open.”

As to the considerations relevant to the exercise of the discretion, Baroness Hale observed:

“43.

My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare ….

44.

….The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.

…

47.

In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer "hot pursuit" cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community.”