H v A

In Hague Convention proceedings, settlement is assessed at the date proceedings are commenced and from the child’s perspective. A short period in the requested state, following earlier disruption and uncertainty, will rarely establish settlement. Consent to travel is distinct from consent to retention and must be clear, unequivocal, communicated and operative at the relevant time. An objection must ordinarily be to return to the country, although separation from a primary carer may be inseparable from return. Under Article 13(b), the court must examine the concrete future situation and whether effective protective measures address any grave risk. Where essential information about the mother’s likely arrest and the children’s protection on return is missing, final determination may properly be adjourned.

The father applied under the Hague Convention 1980 for the summary return of three children to Sweden. The children had lived in Sweden before the mother took them first to X and later to England. The Swedish courts found that the father had not consented to their retention and made an order concerning their care. The mother participated in those proceedings and unsuccessfully sought permission to appeal.

In England, the mother relied on jurisdiction, settlement, consent, the children’s objections and Article 13(b), particularly the risk that she might be arrested or detained in Sweden. The central issue was whether the Convention required return and, if an exception was established, whether protective measures could make return safe and tolerable.

1. Jurisdiction and wrongful retention. Sweden was the children’s habitual residence before their removal. The mother had fully participated in the Swedish welfare proceedings without challenging jurisdiction and had indicated that she would comply with the Swedish order. The English court would not reopen the Swedish court’s jurisdictional determination. The removal and subsequent retention away from Sweden were prima facie wrongful under Article 3.
2. Settlement. Article 12 focuses on settlement at the date proceedings are commenced. The children had been in England for only 33 days, had not attended school there, had no demonstrated social integration, and had experienced repeated relocations and periods without either parent. They were not settled in England. A further interview and settlement report would not reliably establish their position at the relevant date.
3. Consent. Consent fell under Article 13(a). Applying Re G, the mother had not proved clear and unequivocal consent to retention beyond the 2022 school holidays. The father’s permission for a visit to X did not extend to prolonged retention, and his continuing opposition was inconsistent with acquiescence.
4. Children’s objections. The children’s views principally concerned remaining with their mother rather than returning to Sweden. There was no sufficient objection to return to Sweden itself. Any residual concern was subsumed within the Article 13(b) analysis.
5. Article 13(b) and protective measures. The possible arrest and detention of the mother on arrival, together with the children’s dependence on her, could create a grave risk of an intolerable situation. The court had to assess the concrete circumstances of return and the effectiveness, enforceability and practical operation of proposed protective measures. It lacked sufficient information about the likely Swedish process, including whether the children could remain with their mother pending an urgent welfare review.
6. The final determination was adjourned for a limited period. Directions were to be given for focused evidence, including specialist Swedish legal advice, concerning arrest, detention, the existing Swedish care order and measures enabling a safe and expedited return.