F v M (Abduction: Settlement: Grave Risk)

In a Hague Convention child-abduction application issued more than one year after wrongful retention, settlement must be assessed holistically from the child’s perspective. It includes physical integration and emotional and psychological security in the new environment. A child’s relationship with the abducting parent alone does not establish settlement.

Where settlement is established, the return discretion is at large. Delay caused by genuine mediation should not ordinarily strengthen the settlement defence or weigh against return. Under Article 13(b), the court must assess the alleged future risk to the child, including the cumulative effect of allegations, and then consider effective protective measures where necessary. Undertakings may suffice if their practical efficacy is established.

The father applied under the Child Abduction and Custody Act 1985, incorporating the Hague Convention 1980, for the summary return of his three-year-old daughter to Portugal. The mother had wrongfully retained the child in England from October 2022.

The application was issued in March 2025, more than one year after retention. The mother relied on Article 12 settlement and Article 13(b) grave-risk defences. The central questions were whether the child was settled in England, whether return would expose her to grave risk of harm or an intolerable situation, and, if a defence were established, whether return should nevertheless be ordered.

1. Settlement. The court held that settlement under Article 12 is a question of fact requiring a holistic assessment of physical, emotional and psychological settlement in the new environment. The child’s young age, the absence of established nursery friendships, repeated visits to Portugal, continuing homes and family relationships there, and the lack of a clear and consistent message that England was her permanent home outweighed her residence, local connections and maternal support in England.
2. The judge considered the date on which “now settled” falls to be assessed. Although the issue was academic on the facts, he found the reasoning in ES v LS (Abduction: Settlement) and Re G and B (Children) (Abduction: Settlement: Grave Risk: Ukraine) persuasive in favour of assessment at the date of trial.
3. Discretion. Had settlement been established, the discretion would have been at large. The judge would have ordered return, despite the unusual delay, because the child had a close relationship with both parents, already had a home in Portugal, and would benefit from maintaining regular direct contact with her father. Time spent in mediation should not be used adversely merely because court proceedings were issued later.
4. Article 13(b). The mother’s allegations, taken at their highest and cumulatively, did not establish a grave risk of physical or psychological harm or an intolerable situation. The court assessed the future circumstances of return, while recognising that allegations could be evaluated for substance and credibility within the summary process.
5. If a grave risk had been established, the father’s amended undertakings would have provided sufficient protection. They included accommodation, financial support, immigration assistance, restrictions on contact and separation, and safeguards against abuse. The undertakings were accepted as effective measures under Article 23 of the Hague Convention 1996. It was unnecessary for them to be mirrored by a Portuguese court before return.
6. The Article 12 and Article 13(b) defences were dismissed. A summary return to Portugal was ordered, conditional on implementation of the protective measures.

First-instance decision. No appellate history was stated in the judgment.