AX v CY (Article 12; Settlement)

In an Article 12 settlement case, the relevant date is the date on which proceedings were issued in the requested state. Settlement is assessed holistically and includes physical, emotional and psychological integration, stability and permanence. The child’s circumstances before removal provide the necessary context. Concealment, disruption, loss of contact with the left-behind parent and the abducting parent’s conduct are relevant. A settlement defence, if established, gives rise to a discretion rather than an automatic refusal of return. Hague Convention policy remains relevant, but its weight may reduce as the case moves further from the objective of prompt return.

The applicant father sought the return to Spain of the parties’ daughter, who had been removed from Spain to England by the respondent mother. The removal was accepted to be wrongful under Article 3 of the 1980 Hague Convention. The mother relied on settlement under Article 12, grave risk under Article 13(b), the child’s objections under Article 13 and Article 20.

The Article 12 proceedings were issued in England approximately 16 months after removal. The central issues were whether the child was settled at the date of issue, whether protective measures could address the alleged risk, and whether her expressed preference to remain in England amounted to an objection.

1. Return order. The mother failed to establish any pleaded defence. The court ordered the child’s return to Spain as soon as reasonably practicable, subject to agreed protective measures.
2. Settlement. The relevant proceedings for Article 12 were the issue of Form C67 in England, not the earlier application to the Spanish Central Authority. Settlement required a holistic assessment of physical stability, integration and permanence, together with emotional and psychological elements. The child’s life before removal was relevant to assessing her post-removal trajectory.
3. The child had moved from a stable life in Spain, with regular education and significant contact with her father, to an uncertain pattern of accommodation, schooling and childcare. The mother had concealed the child’s whereabouts and had not promoted direct contact. Those matters undermined the claimed settlement. The defence failed.
4. Discretion. Had settlement been established, the court would nevertheless have ordered return. Under Re M (Abduction: Zimbabwe) [2007] UKHL 55, no additional test of exceptionality applies. The discretion is at large and requires consideration of all relevant circumstances, including Convention objectives, comity, welfare and the conduct causing delay.
5. Grave risk. The allegations of domestic abuse did not establish a grave risk of harm or an intolerable situation on return. Protective measures, including supervised or indirect contact, undertakings, accommodation and financial arrangements, could be put in place.
6. Objections and Article 20. The child’s preference for England reflected a wish to remain with her mother, not an objection to return within Article 13. Article 20 did not alter the result.