B, Re

In Hague Convention proceedings, settlement requires more than physical adjustment. It requires physical, emotional and psychological settlement, including security and stability viewed into the future. Deliberate concealment of a child’s whereabouts requires the court to examine a settlement defence critically.

An objection under Article 13 must be a genuine objection to return, rather than a preference. Under Article 13(b), a grave risk may be addressed by effective protective measures. Article 20 is exceptional and narrowly construed. It applies only where return would be incompatible with a Convention right and therefore unlawful under section 6 of the Human Rights Act 1998.

The father sought the summary return of B, aged nine, to France under the 1980 Hague Convention. The mother conceded wrongful removal but relied on settlement, objection, grave risk of harm or an intolerable situation, and Article 20 human-rights defences.

B had lived in La Réunion, New Caledonia, France and England. The mother had concealed his whereabouts from the father for several years. The central questions were whether B was settled in England, whether he objected to return, whether protective measures addressed any Article 13(b) risk, and whether return would unlawfully interfere with Article 8 rights.

1. Return ordered. The mother established the wrongful removal but none of the asserted defences. The court therefore made an order for B’s return to France, subject to the father’s undertakings.
2. Settlement. Applying Cannon v Cannon [2005] 1 FLR 169, Re C (Child Abduction: Settlement) [2006] 2 FLR 797, Re H (Abduction: Child of 16) [2000] 2 FLR 51 and Re N (Minors) (Abduction) [1991] 1 FLR 413, settlement required physical, emotional and psychological elements, with future stability. B’s school, church and football activities showed some physical settlement, but repeated moves, inadequate housing, social isolation, continuing uncertainty and the prospect of another move meant that he was not settled.
3. Objection. Following the guidance in Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, the gateway question was whether B genuinely objected to return, rather than merely preferring England. His statements indicated a preference, and there was evidence that he had been primed. The defence was not established.
4. Grave risk. Applying Re E (Children)(Abduction: Custody Appeal) [2011] 2 FLR 758, the court assumed for analytical purposes that the allegations of domestic violence would create a grave risk absent protection. The father’s undertakings, including remaining in La Réunion, supervised contact and injunctive protection, together with arrangements for the mother’s accommodation and income, adequately addressed that risk. Article 11(4) of BIIa therefore prevented refusal of return on this ground.
5. Human rights. Article 20 was given domestic effect through the Human Rights Act 1998. Consistently with Re D [2006] UKHL 51 and SP v EB and KB [2014] EWHC 3964 (Fam), it was engaged only where return would be incompatible with a Convention right and unlawful under section 6(1). B had family life with his mother, Mr K and his father, but not with the wider community. Any interference caused by return was proportionate to the legitimate aim of resolving welfare issues in France and fulfilling the Convention’s objectives.

First-instance Hague Convention proceedings. No appeal is described in the judgment.