COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE SINGER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE MAURICE KAY
| JOSEF BURNETT CANNON
|- and -
|CATHERINE BRIDGET CANNON
Smith Bernal WordwaveLimited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss A Ball QC (instructed by Ballam Delaney Hunt) for the Respondent
Crown Copyright ©
Lord Justice Thorpe:
"The American father and the Irish mother (to whom I shall refer as F and M) married in California in 1994. Their only child S was born in the same year and is ten today. Until December 1998 the family home was in California, but in that month M kept S in Ireland after the end of an agreed holiday there. F instituted Hague Convention proceedings in Dublin and in July 1999 a consent order for the child's return to California was made. It envisaged that M and the child would both arrive there in time for a hearing before the California courts later that month, but M did not appear at court and took no further part in the proceedings, with the result that in October 1999 that court made an interim custody order in the F's favour. What had apparently happened was that shortly after she and the child returned to America M re-abducted the child in the same month of July 1999, but this time made her way to England. There she assumed names for herself and the child in order to escape detection, which indeed she did until they were traced to Liverpool more than four years later."
"There is no dispute but that in July 1999, for the second time, S was wrongfully removed by M from America, the country of the child's habitual residence, in breach of the rights of custody of F, and that her whereabouts from then until October 2003 were deliberately concealed from F. The concealment involved assuming new identities for both M and S, which included, in the case of the child, elaborate and planned arrangements for her to take over the birth date as well as the name of a child who had died. In terms, therefore, of the degree of parental determination displayed to follow through the abduction and to sever the child's relationship with her father, this case is at the extreme end of the range."
"Three questions of law as to the interpretation and effect of Article 12 (2) seem to me to arise
- In an article 12(2) case, if it is indeed 'demonstrated that the child is now settled in its new environment', does the Convention give rise to a discretion nevertheless to order return, or is there quite simply no remaining Convention jurisdiction to make any such order?
- What if any impact does article 18 have on these questions?
- How if at all is the answer to the first question affected if the child's whereabouts have been actively concealed from the left-behind parent for part or the whole of the time since wrongful removal or retention?"
i) What is the proper construction of the phrase "the child is now settled in its new environment"? (Hereafter Issue 1)
ii) Once the defendant has proved that the child is now settled in its new environment, does the court nevertheless retain a residual discretion to order the child's return? (Hereafter Issue 2)
The Articles of the Convention.
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested state has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."
i) The relationship between the fact of concealment and the concept of settlement within the meanings of Article 12(2).
ii) Whether there is any residual discretion to order a return under the Convention, notwithstanding a finding of settlement.
iii) The exercise of any such discretion in the particular circumstances herein.
The Pérez-Vela Report.
"I now turn to the last matter, which is art. 12, as to whether in these circumstances it has been demonstrated that Katharine in now settled in her new environment. Mr Karsten submitted that the President made no finding on this matter. I have read the relevant passages from his judgment. It is perfectly clear that he considered art. 12 at some length, and that he considered the submissions of counsel and, as I have said, before he started the hearing had been fully acquainted with the documents and the history. The countervailing submissions as to whether Katharine could really be said to be settled in this environment, looking at the historical record of the mother and the numerous movements and schools and so on, must be a matter of considerable debate. For my part, I would not disturb the approach that the President has made on this aspect of the case. He made a specific finding on the matter. The purpose of art. 12 is to give relief where the period which has passed between the wrongful removal and the application is more than one year. If in those circumstances it is demonstrated that the child is settled, there is no longer an obligation to return the child forthwith but, subject to the overall discretion of art. 18, the court may or may not order such a return. Bearing in mind the many moves to which our attention is drawn by Miss Scotland, for my part, I would not consider that it had been demonstrated that Katharine was settled in the new environment. There was from April 1989, and certainly August 1989, a dispute going on with which she must have been concerned about her future and where she was to live. She had established, it is obvious, a relationship with her half-sister, who had come through many of the other vicissitudes with her. But to say that within art. 12 it is demonstrated that there was a long-term settled position in the environment in England is, in my view, a difficult question upon which to be satisfied. Sir Stephen Brown P was not satisfied. I, for my part, would not disturb his decision on that matter. In any event, in all the circumstances of the case, Sir Stephen Brown P exercised his discretion within art. 18, and observed the underlying comity of this Convention in supporting, rather than interfering with, a foreign court properly seized with the management and control of the welfare of Katharine who had been under its jurisdiction as a result of divorce proceedings which took place in that court."
"The second question which has arisen is: what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal presumptions reflect the norm, and the presumption under the Convention is that children should be returned unless the mother can establish the degree of settlement which is more than mere adjustment to surroundings. I find that word should be given its ordinary natural meaning, and that the word 'settled' in this context has two constituents. First, it involves a physical element of relating to, being established in, a community and an environment. Secondly, I find that it has an emotional constituent denoting security and stability. Purchas LJ in Re S did advert to art. 12 at p.35 of the judgment he said:
'If in those circumstances it is demonstrated that the child has settled, there is no longer an obligation to return the child forthwith, but subject to the overall discretion of art. 18 the court may or may not order such a return.'
He then returned to the 'long-term settled position' required under the article, and that is wholly consistent with the approach of the President in M v M and at first instance in Re S. The phrase 'long-term' was not defined, but I find that it is the opposite of 'transient' it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word 'new' is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother, which has always existed in a close, loving attachment. That can only be relevant insofar as it impinges on the new surroundings.
Every case must depend on its own peculiar facts…"
"It seems to me that any survey of the degree of settlement of the child must give weight to emotional and psychological settlement, as well as to physical settlement."
"The mother might or might not have demonstrated that the children were now settled in their new environment. The proposition is harder to demonstrate than at first appears. In Re S (A Minor) (Abduction)  2 FLR 1, 24C, Purchas LJ described what was required as a long-term settled position; and in Re N (Minors) (Abduction)  1FLR 413, 418C, Bracewell J observed that the position had to be as permanent as anything in life could be said to be permanent. Whether a Danish mother who has been present with the children in England for a year only because it has been a good hiding-place and who faces likely extradition proceedings could demonstrate the children's settlement in England within the meaning of those authorities is doubtful."
"It is the case, looking at the relative dates, that these proceedings were commenced after the expiration of the period of one year from the date of removal. It is, in my judgment, necessary to consider why the proceedings were so delayed. That, in my opinion, is relevant to the question of settlement because it was made plain in the case of Re L (Abduction: Pending Criminal Proceedings)  1 FLR 433, 441 that time in hiding cannot go to establish settlement and it is not good law for the abducting parent to be able to say 'well, I have managed to evade the wronged parent; I have managed to hide my address and whereabouts of the children and I am going to rely on that in advance of the argument that the children have been so long in the jurisdiction that they have now settled in that environment and the court should exercise a judgment not to return them to the original jurisdiction'. Further, in that context it is relevant to consider when the father knew of the whereabouts of the children.
I am satisfied that the father first knew of the children's whereabouts in December 1998 when he received a letter from K. Even if the mother wrote in May 1998 and whether or not the father received such a letter, it does not, in my judgment, affect this aspect of the case because the mother did not set out her address and indicated that she would be staying in England for at least a few months. At that date, on any view of the matter, the mother was making representations which did not constitute a determination to remain permanently in this jurisdiction. It was in fact misleading as far as the father was concerned, because I am satisfied that when the mother wrongfully removed the children she intended to stay permanently within this jurisdiction but had no intention of so informing the father. The mother in effect was playing ducks and drakes with the father. She did not disclose her address and she did not inform the school in Australia that she was removing the children. When K did inform the father of the address shortly thereafter there was a removal to another address, and plainly, on the totality of the evidence, the mother was unwilling to have any meaningful contact with the father or to give him any information which might assist him to take any proceedings in relation to the children. Having regard to the fact, as I find, that the father did not know the whereabouts of the children until December 1998, it follows that within 12 months of that time he did in fact bring proceedings. That is a relevant matter in considering whether or not the children had settled. I find that the mother cannot, in the circumstances of this case, rely upon the settlement of the children in this jurisdiction.
It is plain from the authorities what settlement consists of and, so far as these children are concerned, I do not find that they come into the ambit of the test in Re N (Minors) (Abduction)  1 FLR 413. Settlement has to be looked at at the date of commencement of proceedings and it is to be given its ordinary meaning with two constituents physical and emotional."
"Furthermore the question of settlement had to be considered in the context of the spirit of the Convention whereby the fundamental duty of the court is to order a return of the child to the proper jurisdiction when there has been a wrongful removal or retention."
United States of America.
"If the alleged wrongdoer concealed the child's whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations."
"However, the Convention's objective of deterring abduction would be served by ordering return in this case. The circumstances of this abduction were particularly egregious. The mother and those who had assisted her must be shown that courts will deal firmly and unequivocally with child abduction and that Nova Scotia is not a haven for child abductors.
The objective of having the child's best interests determined by the court of the habitual residence would also be served by an order for return even though the child had been absent from her habitual residence for the past seven years. The child's father and extended family were in the United States, as were those who investigated allegations of abuse. The courts there were thus in the best position to continue the process begun in 1995 to determine what was in the child's best interest.
The child is now established in her new environment in terms of school, friends and activities, but the court must also consider the instability of her position and that of her mother, on whom the child is dependant."
"In our opinion this statement does not represent the law so far as the Australian Regulations are concerned. As the majority of the High Court pointed out in De L's case it is the Regulations that must be applied. Nowhere in the Regulations are the words 'long term' to be found and there is in our view no warrant for importing them. The test, and the only test to be applied, is whether the children have settled in their new environment. That test is to be applied either at the time of the application being made or at the time of trial. It is unnecessary to consider which date is the relevant one in the context of this case, given the short period between the two dates."
"33 Firstly the notion that the abductor "must establish the degree of settlement which is more than mere adjustment to surrounding" suggests that there are degrees of settlement, only some of which satisfy the legislative requirement. It therefore suggests a more exacting test than the Regulation actually requires. It may also be taken to imply that matters which would demonstrate adjustment to the environment are somehow irrelevant or to be discounted. The suggested contrast with "mere adjustment to surroundings" thus tends in our view to complicate the issue and distract the court from the task of determining whether the child is settled in his or her new environment.
34 Secondly it could be misleading to say that "settled" has two constituent elements, one physical and one emotional. While the various matters mentioned in the quoted passages are undoubtedly relevant, the analysis of the term into those two distinct components is unhelpful in our view. There are numerous ways in which the various relevant matters could be categorised. One might, for example, include "educational" as a separate category. The two-component categorisation adopted in Graziano might lead trial judges to approach the task in a way different from that required by the words of the Act. It could, especially in finely-balanced cases, affect the weight to be attached to various matters.
35 In our view, therefore, insofar as Graziano suggests that the test for whether a child is "settled in his or her new environment" requires a degree of settlement which is more than mere adjustment to surroundings, or that the word "settled" has two constituent elements, a physical element and an emotional constituent, it represents a gloss on the legislation and should not be regarded as accurately stating the law. We agree with the Full Court in M and C (the correctness of which was not challenged before us) that "the test, and the only test to be applied, is whether the children have settled in their new environment."
"The last thing that I wish to do is to attempt to make things clearer by applying a further coat of gloss, when my instinct is that I should try to reposition myself, if at all, closer to the unvarnished words of the Convention. But by way of comment may I make the point that it seems to me that there is room, in the evaluation whether settlement has or has not been achieved in the particular case, to encompass whichever evidential strands appear most relevant to that consideration. Thus, surely it must be going too far to say that the future can be ignored: take the case of an abducting parent who after many years in country A, or town B or house C, at the relevant time has the firm intention and is in the midst of making plans to achieve a move to a different country, town or home. At the other end of the spectrum may be some more speculative or distant but nevertheless fundamental uncertainty about the pattern of the child's life. In between may be doubts about immigration status, of the sort which the Full Court in M and C regarded are arguable one way, and thus no doubt the other.
Viewed in this light, article 12(2) defines the point of transition. Established settlement after more than one year since the wrongful removal or retention is the juncture in a child's life where the Hague judge's legitimate policy objective shifts from predominant focus on the Convention's aims (for the benefit of the subject child in particular and of potentially abducted children generally) to a more individualised and emphasised recognition that the length and degree of interaction of the particular child in his or her new situation deserve qualitative evaluation, free of Hague Convention considerations and constraints. If (by analogy with the judicial response to the exercise of the article 13(b) discretion) too high a threshold is set for establishing settlement the consequence is not so much that the Hague aim of speedy return will be frustrated, but rather that a child who has in his or her past already suffered the disadvantages of unilateral removal across a frontier will be exposed to the disruption inherent in what for a child would be a second dys-location, potentially inflicting cumulative trauma."
The Pérez-Vela Report.
"The next matter arising is whether art. 12 is applicable to this case, and whether the mother has demonstrated that the two children have settled in their new environment…If the answer to that question is 'yes' then this court has a discretion under art. 18 as to whether or not the children should be ordered to return."
At 417 D she repeated: -
"in the event of the court being so satisfied, then a discretion arises under art. 18 as to whether or not to order the return of the children."
"The first is the door to judicial discretion opened by the mother's contention that the summons is issued more than a year after the alleged abduction and J is now well settled in his new environment."
"If, however, she had demonstrated it, instead of an obligation to order a return, there would have arisen a discretion in the court as to whether to make the order. In Re S (A Minor) (Abduction), above, at 24B, Purchas LJ noted that the discretion arises from Art 18 of the Convention, which states that:
'The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.'
At first I wondered whether this was a reference to a power outside the Convention, for example arising in the inherent jurisdiction, in relation to which the children's welfare would be the paramount consideration. But both counsel are agreed, and I am now satisfied, that the power referred to in Art 18, focused as it is upon the return of the children who have been wrongfully removed or retained, is a power arising within the Convention and thus by virtue of the 1985 Act; and that the discretion which arises under Art 12 when it is demonstrated that the children are settled in their new environment is analogous to that which arises when any of the matters referred to in Art 13 is established or found. In other words, to use the phrase of Lord Donaldson of Lymington MR in Re A (Abduction: Custody Rights)  Fam 106, 122E, sub nom Re A (Minors) (Abduction: Acquiescence)  2 FLR 14, 28F the discretion must be exercised '…in the context of the approach of the Convention'. The welfare of the children is not paramount but it is a factor; and it is hard to conceive that, if established under Art 12, the settlement of the children could ever be unimportant. But the discretion is to choose the jurisdiction which should determine the merits of the issues as to with whom, and in which country, the children should live and therefore where they should reside in the meantime; that is the context in which, as one factor, their welfare falls to be appraised."
"Such a balancing exercise may be appropriate when considering the discretionary powers of the court under Article 18, which will come into play if the proviso to Article 12 is established or indeed if any of the matters contained in Article 13, which will come into play if the proviso to Article 12 is established or indeed if any of the matters contained in Article 13 are established."
"We should add that we were addressed on the matter of discretion which would have arisen under Article 18 if we had been satisfied that either of the main issues should be decided in favour of the respondent."
United States of America.
"I digress for a moment to say that whilst there is some suggestion in some English cases that finding of "settled in a new environment" still leave a discretion in the Court to order the return of a child, I must respectfully disagree with those views. If those view are simply saying that by operation of common law or local statute law, as distinct from Hague Convention law, the Court has jurisdiction to order the return of a child, then there is no dispute between myself and the other learned judges. If however, it is suggested that within the four wall of The Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment, then in my view there is no such room. In my view, the Convention and the [Australian Implementing] Regulations have no further application in respect of such a child.
[and then, at 84, 073, after citing from Re N, referring to Re S and setting out article 18, he continued:]
In my view, Article 18 does no more than indicate that the Convention makes up part of the law of a country exercising Convention powers and that it does not seek to codify the entire law relating to dealings with children about whom it is argued there are jurisdictional questions or about whom it is argued their welfare requires them to be taken to another country. In my view, if I concluded that this was a Hague child who had been wrongfully removed or retained, and that more than one year had passed prior to application being made, and I was satisfied the child was settled in her new environment, that would be the end of the matter under the Hague Convention and under the Regulations."
"Additional Matters Relevant to "Settlement"
95. Before leaving this aspect of the appeal, we think it is necessary to draw attention to the obiter view taken by Kay J in Ayob's case as to whether in a case where one year has elapsed since the child's wrongful removal (or retention) and the filing of an application pursuant to the Hague Convention, a finding under reg 16(1) that a child is settled in a new environment, still leave a discretion in the Court to order the return of a child.
96. At 84,072, his Honour respectfully differed from the approaches of Bracewell J in Re N at 417 and Purchas LJ in Re S (A Minor) (Abduction) (1991) 2 FLR 1 at 25 to the extent that those case "within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment…". Although that set of circumstances was not found to be the case before his Honour, he said that had such facts been the case "that would be the end of the matter under the Hague Convention and under the Regulations." In his Honour's view, the matter would fall to be decided under common law or other statute.
97. While the factual aspects of the children's being "settled" was subject to a good deal of argument in this case, the consequences in respect of discretion under the Regulations was not. We therefore do not propose to deal with that issue which should await full legal argument.
98. We should say however, that we are not necessarily persuaded that Kay J's view is correct."
"Each case should be considered on its own facts, but it will be very difficult indeed for a parent who has hidden a child away to demonstrate that it is settled in its new environment and thus overcome the real obligation to order a return."
Lord Justice Waller:
Lord Justice Maurice Kay:
Appeal Allowed; case remitted to lower court to a Judge other than Singer J; no order for costs