AL v SM

In an application for summary return under the Hague Convention, settlement is assessed holistically and from the child’s perspective. Physical, emotional and psychological settlement are distinct considerations, but they should not be treated as separate legal tests. The emotional and psychological state of a young child’s principal carer may be highly relevant. Concealment increases the burden on the abducting parent, with the extent of that increase depending on the degree of concealment. Even where settlement is established, the court retains a discretion to order return. The discretion should be exercised having regard to the child’s interests and the purposes of the Convention. Acquiescence requires words or conduct which clearly and unequivocally demonstrate that the left-behind parent is not asserting, or will not assert, a right to summary return.

The father applied for the summary return of his four-year-old daughter from England to Slovakia under the Hague Convention and Brussels II Regulation. The mother resisted the application on the grounds that the child was settled in England, that the father had acquiesced in the removal and that return would be intolerable. The defence based on the father’s failure to exercise rights of custody was withdrawn.

The central issues were whether the child was settled in England at the date proceedings were commenced, whether the court should nevertheless exercise its discretion to order return, whether the father had acquiesced, and whether the Article 13B defence was established.

1. Settlement. The application for summary return was refused. The child had been living in England for more than two years and was physically, emotionally and psychologically settled there. Settlement required a holistic assessment of all three elements. They were interrelated, particularly for a young child, and were not to be assessed as separate or arithmetic tests.
2. The assessment was child-centred and fact-sensitive. The child’s perception of home, her relationship with her principal carer, her nursery, friendships and local community were relevant. The mother’s concerns about the child’s future relationship with her father and Slovakian heritage did not prevent present settlement. Those matters could be addressed in Children Act proceedings.
3. Concealment increased the burden on the abducting parent, both because the abducting parent should not benefit from delay caused by concealment and because concealment may make emotional and psychological settlement more difficult to prove. The degree of the burden depended on the degree of concealment. On the facts, any concealment was at the lowest end of the spectrum and, in any event, the evidence of settlement was sufficiently clear.
4. Discretion. Even though settlement was established, the court retained a discretion to order return. It was not appropriate to exercise that discretion. Return would be deeply unsettling, the child’s life was in England, and questions concerning contact with her father could be determined by the English courts.
5. Acquiescence. The defence was not made out. The father’s inaction did not clearly and unequivocally show that he had accepted the removal. Although acquiescence might arise from sheer inaction in an extreme case, this was not such a case.
6. Intolerability. The Article 13B defence added nothing material once settlement and discretion had been determined. The court declined to accept it, while making clear that it had not fully investigated the disputed allegations of financial abuse.

First instance decision. No earlier decision is stated in the judgment.