B (Child Abduction: Settlement), Re

For Article 12(2) of the Hague Child Abduction Convention 1980, settlement is assessed holistically from the child’s perspective. It requires physical, emotional and psychological integration in a new environment on a long-term rather than transient basis. It does not require proof that the child’s arrangements, or the primary carer’s intentions, are permanent.

The new environment includes regular contact with the left-behind parent and that parent’s family. Such contact may support, rather than impede, settlement. Where settlement is established after substantial delay, summary return will have an extremely limited role. Delay remains relevant even where the parties pursued mediation or other non-court resolution.

The mother retained B, then aged nine months, in England in October 2022. The father knew their whereabouts, visited regularly, and B also made repeated and sometimes extended visits to Portugal. Nearly two and a half years after the retention, the father sought B’s summary return to Portugal.

The High Court held that B was not settled for Article 12(2) purposes. It would in any event have ordered return in its discretion. It also rejected the mother’s Article 13(b) defence and accepted protective undertakings offered by the father.

The mother appealed. The principal issues were whether B was settled in her new environment, whether a return should nevertheless be ordered, and whether the Article 13(b) findings and protective measures disclosed an appealable error.

1. Appeal allowed on the Article 12 issues. The judge applied too stringent a test by treating the absence of a clear and consistent message that England would be B’s permanent home as preventing settlement. Article 12(2) requires a long-term, rather than transient, arrangement. It does not require permanence.

2. Settlement is a holistic, child-centred assessment of the child’s physical, emotional and psychological integration in a broad new environment. That environment includes home, nursery, friends, activities and extended family. It also includes regular contact with the left-behind parent and that parent’s family. The judge was wrong to treat B’s repeated visits to Portugal and her close continuing relationship with her father as undermining settlement. In the circumstances, they formed part of the settled pattern of B’s life.

3. By March 2025, B had become physically and psychologically integrated in an environment that was long-term, notwithstanding the mother’s earlier uncertainty and negotiations about a possible return to Portugal. The evidence established settlement and the contrary finding was wrong.

4. The discretion to return a settled child remained available, but this was not a swift-return or “hot pursuit” case. Applying Re M (Zimbabwe) [2007] UKHL 55, the Convention’s return objective had substantially diminished. It was wrong to order return without a full welfare enquiry on limited summary-process evidence, particularly given the likely practical uncertainty concerning the mother’s residence status and wellbeing. A delay of more than two years remained relevant even if it occurred while the parties pursued mediation or other non-court dispute resolution.

5. The court rejected grounds 4 and 5. The judge had correctly applied the high Article 13(b) threshold and was entitled to find that the mother’s allegations, individually and cumulatively, did not establish a grave risk to B. He was also entitled to find that the father’s undertakings were protective measures recognisable in Portugal under the 1996 Hague Convention, without requiring a prior Portuguese mirror order.

6. The summary return order was set aside.

• Court of Appeal (Civil Division): allowed the mother’s appeal on settlement and discretion under Article 12, set aside the summary return order, and dismissed her Article 13(b) and protective-measures grounds.
• High Court of Justice, Family Division: held that B was not settled under Article 12, would in any event have ordered return in its discretion, rejected the Article 13(b) defence, and ordered B’s return to Portugal subject to undertakings.