R v P

In proceedings under the Hague Convention, the court held that a child wrongfully removed more than one year before the return application was physically and emotionally settled in the new environment. Settlement requires an ordinary, fact-sensitive assessment of physical establishment and emotional security and stability. Concealment increases scrutiny but operates on a spectrum.

For Article 13(b), the focus is the risk of harm or intolerability to the child, not the abducting parent’s conduct. The court must identify the risks, consider protective measures, and then resolve disputed issues as best it can. If a return without the primary carer would create a grave risk of psychological harm or an intolerable situation, the defence may succeed. Even where a defence is established, the return discretion is at large and requires a balance between Convention policy and the child’s welfare.

The father applied under the Convention on the Civil Aspects of International Child Abduction 1980 for the summary return of his five-and-a-half-year-old daughter, X, to Lithuania. The mother accepted that X had been wrongfully removed but relied on the settlement defence under Article 12 and the grave-risk defence under Article 13(b).

The court considered the date on which proceedings commenced, whether X was settled in England, the likely consequences if the mother did not return with her, the availability of protective measures, and the effect of Article 10 of Brussels II Revised on the Lithuanian court’s jurisdiction.

1. Outcome. The father’s application for the return of X to Lithuania was dismissed.
2. Article 12. The relevant date for commencement of proceedings was the lodging of the application with the court deciding the return application, rather than the earlier application to the Central Authority. X’s removal was a permanent relocation and was wrongful. Applying Cannon v Cannon [2004] EWCA Civ 1330, the court treated settlement as involving both physical establishment in a community and environment and emotional security and stability. The assessment was fact-sensitive and should not become unduly technical. The mother’s conduct justified careful scrutiny, but the circumstances did not amount to the active concealment seen in Cannon v Cannon. X was settled in England by the relevant date.
3. Article 13(b). The court applied the approach in Re E (Abduction: Custody Appeal) [2011] 2 FLR 758 and Re M (Children) [2016] EWCA Civ 942: identify the risks, consider protective measures, and, if necessary, resolve disputed issues as best the court can. The primary focus was the effect of return on X. The court accepted that the mother was more likely than not not to return because of the risk of separation from her infant child and her fear of the father. A return without the mother would probably expose X to grave psychological harm and an intolerable situation. Protective measures could not realistically address the separation from her primary carer, and a return to the father’s care or State care was unrealistic.
4. The source of the risk was irrelevant. The court had to evaluate the situation X would face on return, including the effect of the mother’s refusal to return, in the context of available protective measures.
5. Discretion. Even if Article 12 or Article 13(b) applied, the court retained a discretion to order return. Under Re M (Abduction: Zimbabwe) [2008] 1 FLR 251, that discretion was at large. Convention policy, the Lithuanian court’s continuing jurisdiction, and the importance of restoring X’s relationship with her father were weighed against X’s welfare, settlement, security and stability. The balance favoured refusing return.