H (Children), Re

For Article 12 purposes, whether a child is settled is a question of fact assessed through the child’s physical and emotional circumstances, primarily from the child’s perspective. Pending litigation is relevant but cannot alone prevent a finding of settlement. An Article 13 objection is also a factual question. The court need not require a child to address distressing hypothetical outcomes before finding a real objection to return. Convention objectives remain important, but a carefully reasoned discretion to refuse return may stand where removal would seriously disturb settled children or seriously damage an objecting child.

The father appealed after Hedley J refused his application under the Child Abduction and Custody Act 1985 for the return of two children to Australia under the 1980 Hague Convention. The children had arrived in England with their mother in August 2003, and related residence and relocation proceedings had continued in England. Hedley J found both children settled in England for Article 12 purposes, found that the older child objected to return under Article 13, and refused return in the exercise of his discretions under Articles 12, 18 and 13. The appeal challenged the findings of settlement and objection and the discretionary refusal of return.

1. Appeal dismissed. Thorpe LJ delivered the leading judgment. Potter LJ agreed. Sedley LJ concurred, adding observations on the Article 13 issue. The lower court’s judgment was comprehensive, careful and not open to criticism on appeal.
2. Settlement under Article 12. The concept of settlement is factual. It requires consideration of the child’s physical and emotional circumstances, viewed primarily through the child’s eyes. Ongoing litigation is relevant, but it is not decisive. Hedley J was entitled to find both children settled despite the pending residence proceedings.
3. Date of wrongful removal. The one-year period runs from the specific wrongful removal or retention. Removal and retention are distinct events. Applying the approach stated by Lord Slynn in Re S (A Minor) (Custody: Habitual Residence) [1998] AC 750, the alternative argument that time began only when the mother expressly announced the separation was inconsistent with the case advanced below and with the finding that the August relocation was a wrongful removal. Article 12 was therefore engaged.
4. Article 13 objection. The evidence supported a real objection by the older child. Her refusal to return, concern about destabilisation, removal from friends, uprooting from school and likely emotional impact were sufficient. It was legally unsustainable to require an anxious child to address a series of distressing counter-factual possibilities about possible arrangements for her brother or mother.
5. Discretion. It was open to Hedley J, having given due weight to the Convention’s objectives, to refuse return under Articles 12 and 18 and separately under Article 13. The evidence supported his conclusion that removal would seriously disturb the children and seriously damage the older child. The appeal was dismissed. The application was refused, publicly funded costs were assessed, and further orders were left to agreement.

• Court of Appeal (Civil Division): [2005] EWCA Civ 319. Appeal dismissed and application refused.
• High Court, Family Division: Hedley J refused the father’s application for the children’s return under the 1980 Hague Convention, finding both children settled and the older child objecting to return.