C (Abduction: Settlement), Re

Where proceedings under the Hague Convention are commenced more than one year after wrongful removal or retention, and the child is demonstrated to be settled in the new environment, the Convention no longer provides jurisdiction to order return. Article 18 preserves domestic powers to order return, but creates no residual Convention discretion.

The one-year period runs from the wrongful removal or retention. Deliberate concealment does not suspend time, although it may be relevant to whether settlement is established. Settlement is a fact-sensitive assessment made in the round. No factor, including concealment, has automatic or predominant weight.

The father sought the return of his daughter to the United States under the Hague Convention on the Civil Aspects of International Child Abduction. The child had been wrongfully removed from the United States in 1999 and concealed until 2003. The proceedings were therefore commenced more than one year after the removal.

The central questions were whether the child was settled in England within article 12(2), whether article 18 preserved a discretion to order return despite settlement, and whether concealment prevented time from running or prevented reliance on settlement. The court also considered, in the alternative, the child's objections and grave-risk defences.

1. Article 12(2). Once wrongful removal or retention is established, article 12 requires return where proceedings are commenced within one year. After one year, return remains required unless settlement in the new environment is demonstrated. If settlement is demonstrated, the Hague Convention no longer supplies either a duty or a power to order return.
2. Article 18. Article 18 does not create a residual discretion to order return under the Convention after settlement has been established. It confirms that domestic law may provide an independent route to return, including proceedings under the Children Act 1989 or the inherent jurisdiction. The Convention and any domestic welfare inquiry are distinct stages.
3. Concealment and settlement. Concealment does not stop the one-year period running. It may nevertheless be highly relevant to settlement. The issue must be assessed on the facts and in the round. The court should consider the child's physical, emotional, social, educational and familial circumstances, together with relevant future uncertainties, without giving any factor automatic or predominant weight.
4. Application. The child had lived in England for more than four years, in the same city, with stable housing, schooling, employment and community and family relationships. Despite the deliberate concealment and the risk of discovery, the positive evidence outweighed the adverse considerations. Settlement was established, so the Hague application failed.
5. Alternative conclusions. If a discretion existed, it would have been exercised against summary return. The child's objections defence and article 13(b) defence were not made out on the evidence and the applicable English authorities. If return had otherwise been required, it would have been regulated in an orderly manner rather than ordered forthwith.