M v F & Ors

Under Article 12 of the Hague Convention, settlement must be assessed on the whole circumstances of the case. Physical stability, schooling and community links are relevant, but concealment, subterfuge, continuing parental conflict and the child’s lack of emotional security may prevent settlement being established. The court must examine critically any settlement founded on wrongful retention or removal.

Under Article 13, a child’s expressed wish to remain with the abducting parent is not necessarily an objection to returning to the country of habitual residence. Views may properly receive little or no weight where the child lacks sufficient maturity or independence of thought, particularly where the child has been influenced by the abducting parent.

The applicant mother sought the return to Poland of her two children under the Hague Convention. The father admitted that he had wrongfully retained the children in England, returned them to Poland pursuant to an earlier consent order, and then wrongfully removed them again to England.

By the time of the second application, more than one year had elapsed since the second removal. The father relied on the children having settled in England and on their objections to returning. He also argued that jurisdiction had transferred to the English court under Article 10 of Brussels IIR because the mother should have discovered the children’s whereabouts earlier. The central issues were whether settlement was established, whether the children’s objections should be taken into account, and whether jurisdiction remained with the Polish courts.

1. The father’s case under Articles 12 and 13 was rejected, and the children were ordered to return to Poland. The court also held that jurisdiction remained with the Polish courts under Article 10 of Brussels IIR.

2. Settlement under Article 12 required an objective assessment of the whole factual picture. Following Cannon v Cannon [2004] EWCA Civ 1330, each case depended on its own facts and settlement had both physical and emotional elements. Concealment and subterfuge did not automatically prevent settlement, but required the court to examine alleged settlement critically. The children’s schooling, accommodation, friendships and community links in England were relevant, but they did not establish settlement in the circumstances.

3. The children had experienced repeated wrongful removals, uncertainty about their future, continuing litigation and substantial influence from their father. Their apparent preference to remain in England was largely an unreasoned wish to remain with him, rather than a considered objection to returning to Poland. Their views therefore received no weight under Article 13.

4. The court took account of the child-focused observations in Re M (FC) and another (FC) (Children)(FC) [2007] UKHL 55, while recognising that that case concerned the exercise of discretion after settlement had been established. The distinction between lawful and unlawful residence in habitual-residence cases, discussed through Puttick v AG and Another [1980] and Mark v Mark [2005] UKHL 42, informed but did not determine the Article 12 assessment.

5. The mother neither knew nor should have known the children’s whereabouts for the period required by Article 10 of Brussels IIR. The father’s concealment and deception did not transfer jurisdiction to England.

Not stated in the judgment.