FD25P00086 - [2025] EWHC 2190 (Fam)

Since it is over a year from the date of allegedly wrongful removal from the date of commencement of Hague Convention proceedings here, so the second paragraph of Article 12 is engaged. Ignoring the fact that Article 3 has not been satisfied, the court shall order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

In Re N (Minors) (Abduction) [1991] FLR 413, 417 – 8 Bracewell J stated as follows:

“The second question which has arisen is: 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. Purchas LJ in In re S (A Minor) (Abduction) [1991] 2 FLR 1 did advert to article 12 at p 35 of the judgment and he said: 'If in those circumstances it is demonstrated that the child has settled, there is no longer an obligation to return the child forthwith, but subject to the overall discretion of article 18 the court may or may not order such a return.' He then returned to a 'long-term settled position' required under the article, and that is wholly consistent with the approach of the President in M v M and at first instance in In re S. 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. 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 in so far as it impinges on the new surroundings. Every case must depend on its own peculiar facts ...” (emphasis added)

In Cannon v Cannon [2004] EWCA Civ 1330 [2005] 1 WLR 32 the Court of Appeal rejected the notion that settlement had only a physical element, and found that there is a discretion within the Convention to return even where settlement is proved. Thorpe LJ approved the excerpt above from Re N and concluded that each case turned on its facts:

“53.

…A broad and purposive construction of what amounts to “settled in its new environment” will properly reflect the facts of each case…”

As to the effect of concealment, it is an important factor, whose effect will vary, depending on the nature of the concealment, and the impact of concealment on settlement:

“52.

In his skeleton argument for the hearing below [counsel] 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.

54.

Concealment or subterfuge in themselves have many guises and degrees of turpitude. Abduction is itself a wrongful act, in that it breaches rights of custody, but the degree of wrong will vary from case to case. Furthermore abduction may also be a criminal offence in the jurisdiction where it occurred. The abductor may have been prosecuted, convicted, and even sentenced in absentia. There may be an international arrest warrant passed to Interpol to execute either in respect of a conviction and sentence. The abductor may have entered the jurisdiction of flight without right of entry or special leave. The abductor may therefore be, or may rapidly become, an illegal immigrant.

55.

At this point I would draw a parallel between an assertion that a child has become settled in a new environment and our case law regarding the acquisition of habitual residence. There is obvious common ground between proving that a child is settled in a new environment and proving the acquisition of an habitual residence in a new environment. The decision of Sir George Baker P in Puttick v. Attorney General [1980] Fam 1 clearly establishes that a fugitive from foreign justice will not acquire habitual residence in this jurisdiction simply by reliance on a temporal period during which the claimant has outwitted authority.

56.

This brings me to the second factor namely the impact of concealment or subterfuge on an assertion of settlement within the new environment.The fugitive from justice is always alert for any sign that the pursuers are closing in and equally in a state of mental and physical readiness to move on before the approaching arrest.

57.

This consideration amongst others compels me to differ from the opinion of the Full Court in Australia rejecting the previous acknowledgment that there were two constituent elements of settlement, namely a physical element and an emotional element. 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 [counsel’s] proposition holds good.

58.

There will often be a tension between the degree of the abductor's turpitude and the extent to which the twelve-month period has been exceeded. Obviously the present case illustrates the possibility that the considerable turpitude of the mother's conduct will be outweighed by the quality of the false environment and the years of history that it has achieved. It is of course an injustice to the deprived father that the longer the deprivation extends the less his prospects of achieving a return. The other side of the same coin is that the longer the mother persists in her deceit the more likely she is to hold her advantage. Not only does she increase her chances of resisting an application for a return order but she also complicates the process of reintroducing the father into the child's life and reduces the prospects of ever restoring the relationship that might have been between father and daughter but for the lost years.”

Thorpe LJ summarised his conclusions as follows:

“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.” (emphasis added)

In Re C (Child Abduction: Settlement) [2006] EWHC 1229 (Fam) [2006] 2 FLR 797 Sir Mark Potter P stated the following at [55]:

“…the fact that a child or teenager is ‘unsettled’ in her own emotional or psychological state, does not, in my view demonstrate she is not well settled for the purposes of the Hague Convention in the place she resides, has an established family life, and intends to remain…” (emphasis added)

Thus, in that case a history of trouble, from persistent bullying and a number of emotional disturbances, did not prevent the court from finding that the child was settled.

In F and M v N [2008] EWHC 1525 (Fam) [2008] 2 FLR 1270 Black J, as she then was, cautioned against “an unduly technical approach to the question of settlement, or indeed acquiescence” (at [66]). Her Ladyship also pointed out that the statements of principle in Cannon v Cannon comparing settlement with acquisition of habitual residence had to take account of the subsequent House of Lords case in Mark v Mark [2005] UKHL 42 [2006] 1 AC 98 which made clear that habitual residence can in some circumstances be established where the residence in question is not lawful (although the legality of the residence may be relevant to whether the residence was habitual). Baroness Hale contrasted the situation of someone who was on the fun after a deportation order or removal directions with that of a person who remains here living an ordinary life despite having no permission to be here. That M’s whereabouts with N remained unknown to F for a considerable period of time, M having clearly indicated to F within a short time of leaving Poland that she did not wish to be found, and not having volunteered where she was but being readily discoverable when proceedings were commended, did not prevent Black J finding that N was settled in England.

Severance of a pre-existing parental relationship is very relevant but not determinative: AX v CY [2020] EWHC 1599 (Fam) per Robert Peel QC (as he then was) at para 27.

In Re G and B (Children) (Abduction: Settlement: Grave Risk: Ukraine) [2025] EWHC 795 (Fam) Harrison J stated the following in relation to Cannon v Cannon:

“45.

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.

46.

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.

47.

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.” (emphasis added)

As to the overall approach to settlement, Harrison J stated as follows:

“50.

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.” (emphasis added)

As to the relevant date on which settlement is judged, there is much authority both for the date of commencement of proceedings, on the basis that any further delay should not affect the outcome (eg Re N (supra)); alternatively there is some authority that it should be the date of the hearing, because the court should have the best evidence possible on the issue (eg E v L (Abduction: Settlement) [2022] 1 FLR 1285). Nothing in this case turns on the difference between the two dates, as the father concedes, so I will assume that the relevant date is the date of commencement of proceedings.

On balance, taking a holistic view of the facts, I consider that the arguments in favour of settlement are stronger than those against.

There is clearly a persuasive case for finding that T is not settled in England. His mother removed him from Zimbabwe having changed his name and date of birth and also removing the father’s name on his birth certificate. She did not inform the father where she was going, still less did she give him contact details, or permit contact with T, until he arrived in England seeking out T. She says she asked her lawyers to send the father a letter stating she had moved to South Africa, which was not true. Whilst the case is not as extreme as in Cannon v Cannon, there has been a substantial element of concealment in the case, and a suspension of the father’s relationship with T from 20 October 2022 to 21 February 2025. T does not live full time with the mother, but lives instead with his aunt and uncle and their children, with the mother (who works in a different town) coming to live with T when she is not working. There is a plan for T to move in with his mother and her partner (who T has not met) in another town which will involve a significant change of environment.

The Guardian, who is a highly experienced practitioner with over two decades of service, has provided a helpful and detailed report setting out the balancing exercise she has carried out. Her conclusion is that he is not fully settled, but is partially settled, because emotional/psychological settlement has not been possible in circumstances where he has not had a home with either parent, being denied a relationship with his father, half siblings and paternal extended family in Zimbabwe, being removed from his environment of familiarity where he was born and had lived all his life, and being provided with a new name and date of birth, which would be unsettling for anyone.

On the other hand, given the significant length of time that has passed, including from November 2024 (when the father contacted Waltham Forest Children’s Services) to 14 April 2025 (when proceedings were commenced), T has been living with his uncle and aunt, with frequent visits from his mother when not working, and has settled into the environment in England on both a physical and psychological level, despite the points made against emotional settlement. He is well integrated into the community, and is doing well at school. When asked, he is quite clear that he wishes to stay in England, not just because he thinks it will help him follow his passion of becoming a professional footballer (as the CAFCASS report asserts) but also because he thinks it is “better”. Although he has not been living full time with his mother, it is settlement in the environment in England that matters, rather than settlement with a particular person. There was one incident in which the Third Respondent is alleged to have acted aggressively towards the mother and tried to grab her, causing T to be unsettled, but T is satisfied that that will not happen again, and there is no evidence that it has recurred. There was also an allegation made to the social worker of another incident in which the uncle is said to have hit T on the head and smacked with a belt; that is denied by the Third Respondent, has not been repeated by T, and T has said that he did not think that the Third Respondent would lose his temper again. As the President said in Re C “the fact that a child or teenager is ‘unsettled’ in her own emotional or psychological state does not demonstrate she is not well settled for the purposes of the Hague Convention in the place she resides.”

It remains undeniable that there has been significant concealment. The departure was clandestine, and the nature of the concealment has been deliberate, with a change of identity for T. The mother’s conduct falls short of being a fugitive from justice, but has involved intentional avoidance of contact with the father for years. However the reason the father was able to trace T was because the mother sent him a voice note from T and he was able to discern an English accent. Further, the effect of the concealment on settlement has been less significant than might have been expected. There has also been a long period of time when the father’s relationship with T has been severed. However, on the facts of this case my judgment is that T has nevertheless become well-settled in England, both physically and psychologically.