W (Abduction: Asylum), Re

In a Hague Convention child-abduction application issued after more than one year, settlement is assessed by reference to the children’s physical, emotional and psychological circumstances, including whether their situation has acquired stability when viewed into the future. Uncertainty about immigration status is relevant but does not prevent settlement where it is one factor among the whole body of evidence.

Where settlement is established, the court retains a discretion whether to order return. That discretion requires consideration of Convention policy, delay, the children’s welfare, disruption, contact with the left-behind parent and the consequences of any alternative return or deportation. A Hague application may be determined before an asylum claim and appeal are concluded, although implementation of a return order must await their determination.

The father applied under the Hague Child Abduction Convention 1980 for the return of four children to the United States. The children had been removed from the United States in 2019 and had lived in England with their mother for over four years. The mother had made an asylum application for herself and the children, which had been refused and was under appeal.

The mother relied on habitual residence, settlement, child objection and grave risk under Article 13(b). The Children’s Guardian supported the settlement defence. The court considered whether habitual residence was assessed at the date of removal, whether the settlement defence was established, and, if so, whether return should nevertheless be ordered.

1. Habitual residence. The relevant time for habitual residence was the date of the wrongful removal or retention. The children were habitually resident in the United States in 2019. The issue was therefore rejected as a live defence.
2. Settlement. The settlement defence was established. The children had lived in England for over four years. Although their first two years involved some instability, their later school attendance, community involvement and home circumstances demonstrated physical, emotional and psychological settlement. The absence of secure immigration status was relevant but not determinative. The uncertain outcome of the asylum appeal could not be predicted and had to be weighed with the other evidence.
3. Other defences. The Article 13(b) defence was not established. The allegations, if substantiated, could create grave risk or an intolerable situation, but the proposed protective measures, including separate accommodation, financial support and restrictions on contact, would sufficiently ameliorate the risk. The child-objection defence was not established. W wished to remain in England but had not articulated an objection to returning to the United States of the required kind, and his views were affected by his mother’s views and by a level of maturity below his chronological age. The younger children had no relevant evidentially established age or maturity.
4. Discretion. The discretion arising from settlement was exercised against return. The court considered the children’s stability and welfare, likely educational and day-to-day disruption, the difficulty of restoring their relationship with their father, the uncertain immigration position, Convention policy and the father’s considerable delay, including gaps in his account of the steps taken.
5. The father’s application for return was dismissed.