T (A Child : Hague Convention proceedings)

Under Art.12(2) of the Hague Convention, settlement requires sufficient physical, emotional and psychological stability. The assessment is child-focused, fact-sensitive and must consider the future, including concealment, disrupted parental relationships and conduct causing delay. A finding of settlement leaves the court with a discretion whether to order return. That discretion requires the Convention’s objectives to be weighed with the child’s welfare and the circumstances producing the exception. Under Art.13(b), the opposing party must establish a grave risk of physical or psychological harm or an intolerable situation on the ordinary civil standard. The court must assess the situation on return and the protective measures realistically available. Delay and a settled child’s dependence on the abducting parent may themselves make summary return intolerable.

The father applied for the summary return of his six-year-old son, T, from England to El Salvador under the Hague Convention. T had been taken from El Salvador to the United States with consent for a holiday and was then brought to England without the father’s agreement. The father had rights of custody and the removal and retention were wrongful. Proceedings were issued more than a year later.

The mother relied principally on settlement under Art.12(2) and grave risk or intolerability under Art.13(b). The central questions were whether T was settled in England, whether the discretionary exceptions were established, and whether return should nevertheless be ordered.

The application for T’s summary return to El Salvador was refused. The court made findings under both Art.12(2) and, alternatively, Art.13(b), and exercised its discretion against return.

1. Settlement. Settlement has physical, emotional and psychological elements. The court must take an overall, child-focused view and consider future stability, not merely adjustment to present surroundings. Conduct involving concealment, failure to maintain the child’s relationship with the left-behind parent, or distortion of the child’s family identity may require especially critical scrutiny. Those matters do not automatically prevent settlement.
2. T was physically settled and had achieved a real, though incomplete and deficient, psychological and emotional stability in England. The mother’s conduct had seriously damaged his relationship with his father and paternal family, but the evidence as a whole sufficiently established settlement under Art.12(2).
3. Discretion after settlement. A finding of settlement does not require return. The discretion under the Convention is at large. It requires the court to weigh Convention policy against the circumstances producing the exception and the child’s welfare. The passage of time meant this was no longer a case of hot pursuit, and the policy of swift return carried reduced weight. The court therefore declined to order return.
4. Art.13(b). The burden was on the mother, on the ordinary civil standard. The risk had to be grave, not merely real. The court had to consider protective measures capable realistically of preventing an intolerable situation. The mother’s objectively serious experiences of violence and threats, together with the absence of measures giving sufficient practical protection, established a grave risk of psychological harm or an intolerable situation.
5. Separately, the combination of T’s settlement, dependence on his mother, integration into a new family containing a very young half-sister, and the likely delay before welfare proceedings could determine his future meant that a disruptive summary return would itself be intolerable and seriously harmful. The Art.13(b) defence was made out and the discretion was again exercised against return. There was no order as to costs, save for detailed assessment.

First-instance Hague Convention proceedings in the High Court (Family Division). The judgment records no appeal.