[2025] EWHC 795 (Fam)

The burden of proof for establishing settlement under Article 12 lies on the respondent. The concept has been the subject of extensive judicial consideration by the higher courts. Cases in which the issue arises were described by Baroness Hale in Re M at paragraph 57 as ‘the most “child-centric” of all child abduction cases’. Given the amount of judicial learning there has been on the subject, it is perhaps surprising to find there remains some debate about aspects of the concept. In this case, I have to consider (i) what it means for a child to be ‘settled’ in this context, and (ii) the date upon which the issue falls to be determined: is it the date of the application or the date of the hearing?

I begin by observing that the issue of settlement necessarily arises when a child has been away from their former country of habitual residence for more than twelve months. Thus, as Baroness Hale said in Re M at paragraph 47:

“…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, … as well as [the child’s] integration in her new community.”

The concept of settlement was first considered at Court of Appeal level in Re S (A Minor) (Abduction) [1991] 2 FLR 1 (‘Re S’) where, in upholding a finding made by Sir Stephen Brown, P, that the child in question was not settled at the material time, Purchas LJ commented upon the mother’s failure to demonstrate ‘a long-term settled position in the environment in England’.

In Re N (Minors) (Abduction) [1991] 1 FLR 413 (‘Re N’), Bracewell J found that the word ‘settled’ should be given its ordinary natural meaning. She held that it was necessary for a respondent ‘to establish the degree of settlement which is more than mere adjustment to surroundings’ and identified two aspects to the concept: ‘a physical element of relating to, being established in, a community and an environment’ and ‘an emotional constituent denoting security and stability’. Referring to Re S she went on to say:

“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 insofar as anything in life can be said to be permanent. What factors does the new environment encompass? 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.”

The leading authority on what it means to be settled is widely considered to be the Court of Appeal decision in Cannon v Cannon [2005] 1 FLR 169. Thorpe LJ conducted a comprehensive review of previous cases decided in this jurisdiction and others, including Bracewell J’s judgment in Re N which he described as ‘a seminal decision’. He rejected the notion that a court’s focus in this context was confined to an examination of what have been termed ‘the physical’ aspects of a child’s life’ such as the establishment of a home, enrolment in school and the development of friendships and interests in the community. He also rejected the approach known as ‘equitable tolling’ adopted on some Circuits in the United States, whereby a period of delay achieved by the concealment of a child is disregarded for the purposes of calculating the twelve-month period in Article 12. Thorpe LJ’s conclusions were summarised succinctly in paragraph 61, where he said:

“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.”

This approach has been followed subsequently. For example, Sir Mark Potter in Re C (Child Abduction: Settlement) [2006] 2 FLR 797 held at paragraph 46 that:

“The word 'settled' has two constituents. The first is more than mere adjustment to new surroundings; it involves a physical element of relating to, being established in, a community, and an environment. The second is an emotional and psychological constituent denoting security and stability. It must be shown that the present situation imports stability when looking into the future.”

Mr Evans relies upon Cannon to submit that there are, in reality, not two constituents to the concept of settlement (as suggested in Re N, Re C and other authorities) but three: physical, emotional and psychological. I accept, to some degree, this submission, but it is important also to emphasise that, identifying the different aspects of being settled, Thorpe LJ in Cannon plainly was not intending to create a quasi-statutory test whereby each limb has separately to be satisfied before the Article 12 exception can be established; counsel on both sides accepted this. In many cases, there will be a considerable overlap between the emotional and psychological elements of settlement (and possibly also the physical element). In some cases, bearing in mind the summary nature of the proceedings and the probable absence of any expert evidence, the psychological aspects of settlement may be difficult to discern.

Black J (as she then was) warned against taking ‘an unduly technical approach’ to the issue of settlement in F v M and N (Abduction: Acquiescence: Settlement) [2008] EWHC 1525 (Fam), [2008] 2 FLR 1270. This was a case where the child, aged 4 at the time, had been in the primary care of the father when she was unilaterally removed from nursery and then from Poland by the mother. F did not learn about the removal for some time and nearly two years had elapsed before he issued Hague Convention proceedings in England. By this time the child was aged 6. Orders for contact were made in the proceedings, but the contact was beset with difficulties. This ‘troubled’ relationship did not prevent Black J from reaching the conclusion that the child was ‘very well settled’ in England.

It is also worth remembering that Cannon was an extreme case where, as Mr Evans put it, the child in question had gone through a ‘Day of the Jackal-type’ experience whereby in order to remain hidden from her father she had been required to assume the identity of a dead child. Singer J, at first instance, commented that ‘[in] terms, therefore, of the degree of parental determination displayed to follow through the abduction and to sever the child’s relationship with her father, this case is at the extreme end of the range.’ Psychological factors loomed large, but even in extreme circumstances such as these, Thorpe LJ did not determine that settlement built upon concealment and deceit could never be achieved; merely that the issue had to be looked at critically.

There is a degree of overlap between the question of settlement and the acquisition of a new habitual residence, but the two issues are not the same. The parallels between the two concepts were considered by Thorpe LJ in Cannon, but his analysis needs to be read cautiously bearing in mind that since that case was decided the Supreme Court has determined that the European law test for habitual residence – ‘some degree of integration in a social and family environment’ - should be imported into our domestic law: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2012] UKSC 60.

In the passage from Re M which I have cited above at paragraph 40 of this judgment, Baroness referred, in the context of settlement, to the child’s ‘integration into her new community’. Despite the similarity of her formulation with the test that later came to be adopted for habitual residence, she was not in that context seeking to compare the two concepts. Plainly, in my judgment, it is necessary to demonstrate a greater degree of integration in a new environment to establish settlement than may be required to show that a child’s habitual residence has changed. Article 7 of the 1996 Hague Convention, for example, envisages a situation in which a new habitual residence can be acquired without settlement being achieved. Whereas a new habitual residence can be acquired in a single day, it is difficult to conceive of settlement being achieved other than over a period measured in months, at least.

In common with Williams J in AH v CD [2018] EWHC 1643 and Robert Peel QC (as he then was) in AX v CY (Article 12 Settlement) [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 (as demonstrated, for example, by Black J’s decision in F v M and N). 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.

So far as the relevant date for determining settlement is concerned, I was surprised to learn from both counsel that there is no binding authority on this point. In the majority of cases, whether the issue is considered at the outset of the proceedings or the date of the final hearing is highly unlikely to yield different results.

In Re N, Bracewell J held that settlement falls to be considered at the date of commencement of proceedings ‘as otherwise any delay in hearing the case might affect the outcome’. On the facts of that case, the issue was academic and does not appear to have been fully argued. Mr Gration KC and Mr Evans informed me that, with one exception, Re N has been consistently followed by other judges at first instance although I was not shown any authority in which that conclusion has been fully reasoned or one in which it made a difference to the outcome.

The outlier, as both counsel characterised it, is E v L (Abduction: Settlement) [2022] 1 FLR 1285. In that case, Mostyn J came to the opposite conclusion from Bracewell J, and held that the question of settlement falls to be decided at the date of the hearing. While it may be an outlier, I find Mostyn J’s analysis persuasive and agree with it. His interpretation of Article 12 makes sense linguistically (see paragraphs 61 and 62 of his judgment), but more importantly it is consistent with the child-centric nature of the exception emphasised in Re M and the aim of the Convention more generally to operate so as to promote the interests of children. As Mostyn J put it at paragraph 63:

“The interpretation of Bracewell J might result in a child who was not settled as at the date of the commencement of proceedings, but who had become settled by the date of trial, being [automatically] sent back. This would be completely perverse.”

With the addition of my word in square brackets, I respectfully agree.

The issue may well become significant in cases which are remitted following an appeal or which otherwise have been subject to lengthy delays (perhaps because of a concurrent asylum claim). In my view, it would be absurd and wholly inconsistent with the child’s interests, if the court was required to examine an historical position and ignore more recent information. It could also create real forensic difficulties, bearing in mind that in settlement cases the most important evidence relating to the issue is usually a report from Cafcass which examines the child’s circumstances as they presently are. So far as I am aware, it has never been suggested that issues such as a child’s objections or questions of intolerability must be examined at the date proceedings commence. I can see no logical reason for adopting a different approach to the question of settlement.