ES v DS

Under Article 12 of the Hague Convention 1980, settlement is assessed holistically from the child’s perspective at the date proceedings are commenced. Physical, emotional and psychological integration are relevant, as are stability, schooling, family relationships, concealment and delay.

The Article 13(b) threshold is high, but a grave risk may arise from domestic abuse and the likely effect of return on the primary carer’s mental health. Protective measures must be concrete and reliable. The court must assess their likely effectiveness, including the applicant’s compliance.

Where a Convention defence is established, discretion is at large and must balance Convention policy with welfare and the reasons why discretion arose.

The Father applied under the Hague Convention 1980 for the summary return of two children from England to Turkey. The children had remained in England for over three years after an agreed holiday became a wrongful retention. The Mother relied on settlement under Article 12, the elder child’s objections under Article 13, and grave risk under Article 13(b).

The court heard evidence from a Cafcass officer and a psychologist. The central issues were whether the children were settled, whether the elder child’s objections met the statutory gateway, whether return created a grave risk which could be addressed by protective measures, and how discretion should be exercised if a defence was established.

1. Settlement. The Mother established the Article 12 settlement defence. The assessment was made at the date proceedings were issued, 21 July 2022. The children had lived in England for three and a half years, had occupied the same accommodation for over two years at the relevant date, and had established schooling, social connections and a strong attachment to their primary carer. Settlement required a holistic assessment of physical, emotional and psychological integration, applying the principles in Cannon v Cannon [2004] EWCA Civ 1330; [2005] 1 FLR 169 and AH v CD [2018] EWHC 1643.
2. Child’s objections. The elder child objected to returning to Turkey, but had not attained the age and degree of maturity at which it was appropriate to take account of his views. His age, educational difficulties, reliance on adult support and limited developmental capacity meant that the Article 13 gateway was not met. The principles in Re M (Republic of Ireland) [2015] EWCA Civ 26; [2015] 2 FLR 1074 and H v K [2017] EWHC 1141 (Fam) were applied.
3. Grave risk. The Article 13(b) defence was established. The evidence, including the Father’s admissions, the Cafcass assessment and his conduct during the hearing, established a prima facie grave risk of physical or psychological harm or an intolerable situation. The Mother’s likely mental-health deterioration on return was also likely to impair her care of the children. The court could not be satisfied that the Father’s limited undertakings would remove or sufficiently alleviate the risk. In particular, his denial of violence and inability to regulate his emotions undermined confidence in compliance. The approach in Re IG [2021] EWCA Civ 1123 was applied.
4. Discretion and outcome. The discretion under the Convention was at large. Applying Re M (Abduction: Zimbabwe) [2007] UKHL 55 and Re G, the court balanced prompt restorative return, home-state decision-making, comity and deterrence against the children’s welfare and the reasons the discretion arose. The welfare considerations strongly opposed return, and the application was dismissed.