D v D & Ors

Under the 1980 Hague Convention, settlement is assessed holistically from the child’s perspective at the date proceedings are commenced. It has physical, emotional and psychological dimensions, including integration into home, school, family and social environments, together with security and stability. A child may be settled despite some changes of home, temporary residence abroad or separation from siblings.

Where a Convention defence is established, the discretion to refuse return is broad. It requires consideration of welfare factors on the available evidence, balanced against Convention policy. Exceptionality is not required. The court may refuse summary return where the children’s established environment and welfare considerations substantially outweigh the objectives of prompt return.

The applicant father sought the return of the parties’ two youngest children to Norway under the 1980 Hague Convention. The children had moved from Norway to England in 2020, spent several months in Somalia, and returned to England in March 2023. The application was issued in March 2024.

The father alleged wrongful removal and disputed consent. The mother relied on consent, acquiescence, settlement and Article 13(b). The Children’s Guardian considered the children settled in England. The central issues were whether the father had consented to their relocation and whether the children were settled in England when proceedings commenced.

1. Consent. The mother had proved that the father clearly and unequivocally consented before removal to the children coming to England to live. The parties had abandoned their home in Norway, informed the children’s schools of their departure and acted within a longer-term plan for the family to live in England. The father’s subsequent conduct, including his failure to take action for almost four years and his agreement to the older children visiting Norway, was consistent with continuing agreement.
2. Settlement. The children were settled in England within Article 12. Settlement required a holistic assessment from the children’s perspective, including physical integration and emotional or psychological security. They had lived in the same area for most of the preceding four years, attended school there, spoke English as their first language and had close relationships with their mother and extended maternal family. Temporary residence in Somalia, changes of home, allegations of physical punishment and separation from older siblings did not prevent settlement.
3. Discretion. The established defences gave rise to a discretion to refuse return. That discretion was at large. The court had to consider welfare factors so far as possible on the limited evidence, while giving proper weight to Convention objectives. Exceptionality was not required. The children’s long-established life in England, lack of memories of Norway, inability to speak Norwegian and likely disruption from return meant that prompt return carried little significant weight.
4. The application for return orders was refused. The Article 13(b) issue was not determined because it was unnecessary and disproportionate to investigate it further after the other defences had succeeded.