C (a child), Re

Under art 12 of the Hague Convention, settlement requires both physical integration into a community or environment and emotional and psychological security and stability. Emotional disturbance does not, by itself, prevent settlement. Concealment and delay remain relevant to the assessment and to the court’s residual discretion to order return even after settlement is established.

Where settlement is established after substantial delay, the court must weigh the Convention’s purposes, the abducting parent’s wrongdoing, the injustice to the left-behind parent and the child’s welfare. A mature child’s objections must be considered where they are genuinely her own and extend beyond a preference to remain with the abducting parent.

The father applied under the Hague Convention for the summary return of his fourteen-year-old daughter to the United States. The mother had brought the child to England in December 2000 without the approval required by a Michigan custody order. The father began proceedings in March 2006.

The mother accepted that the removal was wrongful for art 3 purposes. She relied on the child’s settlement under art 12, the discretionary exception in art 13, and the child’s objections to return. The central issues were whether the child was settled in England, whether the court should nevertheless order return under its residual discretion, and what weight should be given to her objections.

1. The mother’s concession established wrongful removal under art 3. Although the father did not have custody rights at the time of removal, breach of the Michigan order preventing removal from Florida without judicial approval was sufficient, applying Re H (Child Abduction: Rights of Custody) [2000] AC 291.

2. For art 12, settlement has physical and emotional or psychological elements. The child must be established in a community and environment and must enjoy security and stability looking to the future. The relevant environment includes home, school, people, friends, activities and opportunities, but not, by itself, the relationship with the abducting parent.

3. The child was physically settled after five years in the same community, with a home, family connections, friends, school and supportive activities. Bullying and emotional difficulties did not prevent settlement. The uncertainty of the family’s immigration position did not defeat settlement because there was no present deportation process or indication of imminent removal.

4. Even where settlement is established, the court retains a discretion under art 18 to order return. The court considered the Convention’s purposes, the mother’s wrongdoing, the injustice to the father and the child’s welfare, adopting the approach in Re C (Abduction: Settlement) (No 2) [2005] 1 FLR 938. The English court was no longer materially less well placed than the United States courts to assess welfare issues arising from the child’s subsequent life in England. Return would jeopardise the child’s hard-won emotional and educational stability.

5. The evidence was insufficient to establish the art 13 physical or psychological harm defence, but it was unnecessary to determine that issue. The child had attained sufficient age and maturity for her views to be taken into account. Her objections were genuinely her own, based substantially on her memories and experiences, and were not merely a preference to remain with her mother. They therefore reinforced the welfare reasons against return.

6. The father’s application was dismissed. The dismissal was suspended for 14 days to permit consideration of an appeal, and existing protective orders continued during that period.