N v N (Art 12 Settlement)

Under Art 12 of the 1980 Hague Convention, settlement is assessed at the date of the final hearing. The court must adopt a broad, purposive and holistic assessment of the child’s physical, emotional and psychological settlement in the new environment. Uncertainty about immigration status, concealment, delay and disruption are relevant but not determinative.

Under Art 13(b), the court should first consider whether it can confidently discount the possibility of risk. If not, it assesses the allegations at their highest and determines whether they could establish grave risk. It then considers whether sufficiently effective protective measures are available. Where the exceptions are established and adequate protection cannot be demonstrated, a return order will ordinarily be inappropriate.

The father sought the summary return of his four-year-old child to Albania under the Child Abduction and Custody Act 1984 and the 1980 Hague Convention. The mother accepted that the child was under 16, habitually resident in Albania, subject to the father’s custody rights and wrongfully removed.

The mother relied on the settlement exception under Art 12 and the grave-risk exception under Art 13(b). She and the child had pending appeals against refusals of their asylum claims. The court therefore also received submissions on whether a return order could be made or implemented notwithstanding the principles in G v G (A Child) [2021] UKSC 9, but that issue did not arise for decision.

1. Application dismissed. The child was settled in England and Wales for Art 12 purposes, and the mother established the Art 13(b) exception. The court declined to order return in the exercise of its discretion.
2. Settlement was assessed at the date of the final hearing. The wording of Art 12, particularly the expression “is now settled”, and the child-centred purpose of the exception supported that conclusion. The assessment was holistic, considering the child’s routine, accommodation, nursery, friendships, relationships, language and emotional and psychological integration. Immigration uncertainty was relevant but carried minimal weight on the facts.
3. The court applied the Art 12 discretion in light of the policy identified in Re M (Zimbabwe) [2007] UKHL 55. Return would disrupt the child’s established life and was not in his best interests. The decision did not determine the parties’ long-term welfare dispute or contact arrangements.
4. For Art 13(b), the court adopted a three-stage inquiry: whether the evidence enabled it confidently to discount the possibility of risk; if not, whether the allegations taken at their highest could establish grave risk; and, if so, whether protective measures could meet the assumed risk.
5. The court did not conduct a fact-finding exercise. Having declined confidently to discount particularised allegations of prolonged domestic abuse, coercive and controlling behaviour and threats to kill, it assessed them at their highest. The allegations established a grave risk of physical or psychological harm or an intolerable situation for the child. The mother’s mental-health evidence, considered separately, did not establish a grave risk through destabilisation of her parenting.
6. Protective measures had to be examined in concrete terms, including likely compliance, consequences of breach and enforceability in Albania. The competing and incomplete opinions of the parties’ Albanian lawyers did not provide sufficient evidence. The court could not be satisfied that the proposed undertakings would provide adequate protection. A return order was therefore inappropriate.
7. The court expressly declined to determine the asylum and refoulement issue. Any observations on that contentious issue would have been obiter, particularly as the SSHD had not intervened.

First-instance decision. No prior appellate decision in the same proceedings was stated.