Cannon v Cannon

For Article 12(2) of the Hague Convention on the Civil Aspects of Child Abduction, settlement requires more than physical integration. The court must also evaluate the child’s emotional and psychological security and stability. Concealment or subterfuge does not create a rigid tolling rule, but it makes proof of genuine settlement substantially harder and requires critical scrutiny.

Where settlement is established after the one-year period, Article 18 preserves a residual Convention discretion to order return. That discretion is exercised in the Convention’s context; a finding of settlement does not itself end the return application.

The American father appealed from Singer J’s judgment of 28 May 2004 in Hague Convention proceedings. The Irish mother had wrongfully removed the child from the United States in July 1999 and concealed both herself and the child in England under assumed identities until October 2003.

Singer J rejected the established domestic approach to Article 12(2). He held that settlement did not require more than physical settlement and that, once settlement was proved, the Convention gave no residual power to order return. The appeal concerned the proper meaning of settlement and whether Article 18 preserved a discretion to order return after settlement had been established.

1. Appeal allowed. Thorpe LJ, with whom Waller LJ agreed and Maurice Kay LJ concurred, held that Singer J had been wrong to depart from the established construction of Article 12(2) of the Hague Convention on the Civil Aspects of Child Abduction.

2. Settlement in a new environment is not established by physical features alone, such as home, school and social activities. It also requires proper regard to the child’s emotional and psychological security and stability. The established two-element approach, exemplified by Re N (Minors) (Abduction) [1991] 1 FLR 413, was consistent with the Convention’s purposes and was upheld.

3. Concealment and subterfuge are highly material to that factual assessment. The court rejected a rigid tolling rule under which concealed time is deducted mechanically from the period of delay. Instead, it should construe settlement broadly and purposively, scrutinising whether a child’s apparent integration rests upon insecurity created by concealment, deceit, criminal fugitive status or the likelihood of further movement. An abducting parent who has concealed a child will ordinarily face a much greater burden in proving emotional and psychological settlement.

4. Even where settlement is proved, Article 18 confers a residual Convention discretion to order return. A finding of settlement removes the automatic obligation to return; it does not terminate the Convention application. The discretion remains to be exercised in the Convention’s context, with due regard to its objectives and to the child’s welfare as a factor rather than as the paramount consideration.

5. The court did not determine settlement or exercise the residual discretion itself. The outstanding issues were remitted to the Family Division before a judge other than Singer J. There was no order for costs.

• Court of Appeal (Civil Division): Allowed the father’s appeal on the construction of Articles 12(2) and 18 of the Hague Convention on the Civil Aspects of Child Abduction and remitted the outstanding issues.
• High Court of Justice, Family Division (Singer J): Held that settlement required no more than physical settlement and that proof of settlement ended the Convention jurisdiction to order return.