D v G

Under art 12 of the 1980 Hague Convention, settlement is assessed from the child’s perspective through a holistic, non-technical inquiry. It includes physical integration and emotional or psychological security and stability. The loss of a relationship with the left-behind parent is important but not determinative. Once settlement is established, return remains discretionary; Convention policy carries less weight where delay means that speedy return is no longer achievable.

Under art 13(b), disputed allegations are assessed at their highest and cumulatively, followed by close scrutiny of protective measures and the concrete situation on return. Domestic abuse and separation from a caring parent may create grave risk or an intolerable situation. The application was dismissed: settlement was proved, the Article 13(b) defence was not made out, and welfare militated against return.

The father applied under the 1980 Hague Convention for the summary return to France of his four-year-old daughter, more than 18 months after the mother and child moved to England. The mother relied on the Article 12 settlement defence and the Article 13(b) grave-risk defence. She also sought a declaration that the child was habitually resident in England and a transfer of jurisdiction under the 1996 Hague Convention. The transfer application was stayed.

French proceedings had produced residence and contact orders, but no order requiring the mother and child to return. The central issues were whether the child was settled in England, whether return would create a grave risk or intolerable situation, whether protective measures addressed that risk, and whether return should nevertheless be ordered in the court’s discretion.

1. Disposition. The father’s application for summary return was dismissed. The court found that K was settled in England for the purposes of Article 12 and declined to exercise its discretion to return her. The Article 13(b) defence was not made out, although the alleged abusive behaviour, taken cumulatively at its highest, would have met the grave-risk threshold.

2. Article 12. The respondent bears the burden of proving settlement. The assessment is child-centred, holistic and non-technical. It includes physical integration into the home, school, social and family environment and emotional or psychological security and stability. The court applied the approach in Re B (Child Abduction: Settlement) [2025] EWCA Civ 1382, Re B (A Child) [2018] EWHC 1643 (Fam) and F v M and N (Abduction: Acquiescence: Settlement) [2008] EWHC 1525. The loss of the relationship with the father was important but not determinative. K had a stable home, school, family and social network and had lived in the same family unit for a substantial period.

3. Discretion. Following Re M (Zimbabwe) [2007] UKHL 55, a settled child may still be returned, but the discretion is at large. It permits consideration of Convention policy, the child’s welfare and the circumstances giving rise to the discretion. Because delay meant that the Convention’s objective of speedy return could no longer be achieved, those general policy considerations carried less weight. K’s welfare strongly militated against uprooting her from her familiar family and school environment.

4. Article 13(b). The court adopted the two-stage approach described in Re IG (A Child) (Child abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123, E v D (Return Order) [2022] EWHC 1216 (Fam) and Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27. The court first assessed the cumulative risk on the assumption that the allegations were true, then examined the concrete situation on return and the efficacy of the proposed protective measures. The measures were sufficient to ameliorate the risk arising from the alleged abusive behaviour. The mother’s asserted refusal to return was scrutinised under R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296. On balance, it was more likely that the mother, K and the stepfather would return together, so the separation-based defence failed.

5. Applying Article 7 of the 1996 Hague Convention, the court concluded that K was habitually resident in England. A prompt directions hearing and likely fact-finding hearing were required to determine future contact with the father.

First instance. The judgment records earlier French proceedings involving residence and contact orders, and English child-arrangements and jurisdiction-transfer proceedings. The transfer application under the 1996 Hague Convention was stayed pending determination of the return application. No appellate decision is identified.