D v O

Under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, a finding that children are settled gives rise to a genuine discretion whether to order return. The discretion is at large. There is no additional test of exceptionality, and Convention policy is not automatically overriding. It must be weighed with the circumstances producing the discretion and the individual children’s rights and welfare. The court must examine the particular children’s circumstances; generalisations about young children adapting readily are insufficient. Where the first-instance judge has failed to apply these principles or explain the balancing exercise, the appellate court may exercise the discretion itself on reliable findings. The children’s welfare and the suitability of the forum may justify refusing summary return.

The mother took the parties’ two children from the United States to Nigeria and decided not to return. The father later commenced proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 when the mother and children visited England. The trial judge rejected the Article 13(a) and Article 13(b) defences but found that the children were settled in Nigeria for the purposes of Article 12. He nevertheless ordered their return to the United States.

The mother appealed, arguing that the judge had failed to apply the governing principles and had inadequately explained the exercise of discretion. The central issues were whether the return discretion had been lawfully exercised and, if not, how it should be exercised.

1. Appeal allowed. The father did not challenge the finding that the children were settled in Nigeria. That finding triggered the discretion under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The trial judge’s exercise of that discretion was invalid because he neither stated nor applied the principles in Re M (Abduction: Zimbabwe) [2007] UKHL 55 [2008] AC 1288.
2. The discretion is at large. Convention policy, including prompt return, comity, respect for judicial processes and deterrence, is relevant but forms only part of the overall assessment. It must be weighed against the circumstances producing the discretion and the individual children’s rights and welfare. In settlement cases, the major objective of swift return may no longer be achievable, and the country of origin cannot automatically be assumed to be the better forum.
3. The judge considered only the general policy favouring return and the children’s young age. He failed to identify and balance the individual circumstances. Welfare was relevant to the decision whether to return, not merely to arrangements after return. Generalised assumptions about the adaptability of young children could not replace an examination of the evidence. Where the first-instance exercise was invalid, the Court of Appeal could exercise the discretion itself on unchallenged findings despite not having heard the oral evidence, consistently with the approach in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881 [2003] 2 FLR 1035.
4. The children were integrated into Nigeria, regarded it as home, and could resume their settled life there. The Convention policy considerations were weakened by the delay, the absence of concealment, continuing contact, the parents’ familiarity with Nigeria, the father’s conduct, and the Nigerian court’s prior involvement. Nigeria was the more appropriate forum for future welfare litigation. The return application was therefore dismissed. The undertakings given below ceased to have effect.
5. Pitchford LJ agreed that the two prevailing considerations were Convention policy and the children’s immediate needs and general welfare. Wilson LJ additionally confirmed that settlement under Article 12 is assessed at the date of issue of the originating summons; subsequent delay may affect the discretion but does not retrospectively remove the defence.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 128, the appeal was allowed and the father’s originating summons seeking return of the children to the United States was dismissed.
• High Court (Family Division): His Honour Judge Wallwork, sitting as a Deputy High Court Judge, found that the children were settled in Nigeria for Article 12 purposes but ordered their return to the United States.