IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF THE INHERENT JURISDICTION
Strand, London, WC2A 2LL
B e f o r e :
|Re C (Abduction: Settlement)|
Alison Ball QC and James Gatenby (instructed by Ballam Delaney Hunt) for the Defendant Mother
Michael Nicholls (instructed by Cafcass Legal) as Advocate to the Court
Hearing dates : 1, 2 and 3 March and 28 May 2004
Crown Copyright ©
Mr Justice Singer:
'if prior to the resumption and determination of the substantive hearing of the application in the originating summons the parties agree to attempt to resolve the issues between them (or some of the issues) through mediation, nothing said or done by either party in agreeing to make such an attempt or in the course of the proposed mediation will be admissible in evidence herein (whether as evidence of acquiescence on the part of the plaintiff or otherwise) and that the court will draw no inference about the strength or otherwise of a party's case in the proceedings from his or her agreement to make such an attempt.'
But as it transpired this initiative did not in this case bear any fruit, and the case resumed before me on a fully-contested basis.
The introductory questions of law relating to article 12(2)
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.
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
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.
• 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?
• If in such a case the court is satisfied that 'settlement' has taken place then the application falls from the Convention's ambit entirely, and no discretionary power to order return subsists.
• Article 18 creates no residual jurisdiction to make a return order under the Convention. Its purpose and effect are to make it clear that the Convention in no way limits or precludes the receiving country from ordering return pursuant to its own domestic laws.
• Deliberate concealment does not stop the year's time running, although it may be and often is highly material when the court considers whether settlement is demonstrated.
Conclusions on the evidence
Interpretation of article 12(2)
• to order return forthwith; unless
• more than the relevant year has elapsed, in which case nevertheless order return; unless in addition
• settlement is demonstrated, in which event make no order under the Convention.
The route to interpretation
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Interpretation of treaties authenticated in two or more languages
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions –
The objects of the present Convention are –
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
It is obvious that there are now very serious questions about where the best interests of both these children lie. Mr Nicholls points out that the object of the Hague Convention is set out in its preamble. In essence this is to further the best interests of children by ensuring their speedy return to the country where they have been habitually resident. Once the time for a speedy return has passed, it must be questioned whether it is indeed in the best interests of a child for there to be a summary return after the very limited inquiry into the merits which is involved in these cases. Article 12 of the Convention recognises this by allowing the court to refuse to return the child if proceedings are brought more than a year after the wrongful removal or retention of the child when the child is now settled in its new environment.
[I recognise, in passing, that Hale J in using the permissive 'allowing' rather than the mandatory 'requiring' may have assumed that settlement in a more-than-one-year case does not bar a Convention return order: but the point did not require consideration in that case which fell within article 12(1).]
Articles 12 and 18 - Duty to return the child
106 These two articles can be examined together since they complement each other to a certain extent, despite their different character
Article 12 forms an essential part of the Convention, specifying as it does those situations in which the judicial or administrative authorities of the State where the child is located are obliged to order its return. That is why it is appropriate to emphasise once again the fact that the compulsory return of the child depends, in terms of the Convention, on a decision having been taken by the competent authorities of the requested State. Consequently, the obligation to return the child with which this article deals is laid upon these authorities. To this end, the article highlights two cases; firstly, the duty of authorities where proceedings have begun within one year of the wrongful removal or retention of a child and, secondly, the conditions which attach to this duty where an application is submitted after the aforementioned time-limit.
107 In the first paragraph, the article brings a unique solution to bear upon the problem of determining the period during which the authorities concerned must order the return of the child forthwith. The problem is an important one since, in so far as the return of the child is regarded as being in its interests, it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it - something which is outside the scope of the Convention. Now, the difficulties encountered in any attempt to state this test of 'integration of the child' as an objective rule resulted in a time-limit being fixed which, although perhaps arbitrary, nevertheless proved to be the 'least bad' answer to the concerns which were voiced in this regard.
108 Several questions had to be faced as a result of this approach: firstly, the date from which the time-limit was to begin to run; secondly, extension of the time limit; thirdly, the date of expiry of the time-limit. As regards the first point, i.e. how to determine the date on which the time-limit should begin to run, the article refers to the wrongful removal or retention. The fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of its habitual residence. Secondly, the establishment of a single time-limit of one year (putting on one side the difficulties encountered in establishing the child's whereabouts) is a substantial improvement on the system envisaged in article 11 of the Preliminary Draft drawn up by the Special Commission. In fact, the application of the Convention was thus clarified, since the inherent difficulty in having to prove the existence of those problems which can surround the locating of the child was eliminated. Thirdly, as regards the terminus ad quem, the article has retained the date on which proceedings were commenced, instead of the date of decree, so that potential delays in acting on the part of the competent authorities will not harm the interests of parties protected by the Convention.
To sum up, whenever the circumstances just examined are found to be present in a specific case, the judicial or administrative authorities must order the return of the child forthwith, unless they aver the existence of one of the exceptions provided for in the Convention itself.
109 The second paragraph answered to the need, felt strongly through the preliminary proceedings, to lessen the consequences which would flow from the adoption of an inflexible time-limit beyond which the provisions of the Convention could not be invoked. The solution finally adopted plainly extends the Convention's scope by maintaining indefinitely a real obligation to return the child. In any event, it cannot be denied that such an obligation disappears whenever it can be shown that 'the child is now settled in its new environment'. The provision does not state how this fact is to be proved, but it would seem logical to regard such a task as falling upon the abductor or upon the person who opposes the return of the child, whilst at the same time preserving the contingent discretionary power of internal authorities in this regard. In any case, the proof or verification of a child's establishment in a new environment opens up the possibility of longer proceedings than those envisaged in the first paragraph. Finally, and as much for these reasons as for the fact that the return will, in the very nature of things, always occur much later than one year after the abduction, the Convention does not speak in this context of return 'forthwith' but merely of return.
112 Finally, article 18 indicates that nothing in this chapter limits the power of a judicial or administrative authority to order the return of the child at any time. This provision, which was drafted on the basis of article 15 of the Preliminary Draft, and which imposes no duty, underlines the non-exhaustive and complementary nature of the Convention. In fact, it authorises the competent authorities to order the return of the child by invoking other provisions more favourable to the attainment of the Convention. This may happen particularly in the situations envisaged in the second paragraph of article 12, i.e. where, as a result of an application being made to the authority after more than one year has elapsed since the removal, the return of the child may be refused if it has become settled in its new social and family environment.
The position thus far in English law
'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 a 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 in art. 18, the court may or may not order such a return.'
'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.'
'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)  1 FLR 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.
If, however, she had demonstrated it, then, 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 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.
I am clear that this is a case where the policy behind the Convention would outweigh the other factors in the exercise of any discretion that might have arisen under Art 12 or indeed, had my finding about grave risk been otherwise, would have arisen under Art 13(b). The mother wrongfully removed the children from Florida. Then she removed them from Denmark in flagrant defiance of an order. If they are settled in their new environment in England, it is because for 10 months she hid them here, with the result that the father could take no earlier action to secure their return. Apart from the fact that the mother was once an au pair here, neither parent had any connection with England prior to 1 December 1997. Florida is where they and the children lived; where the father still lives; and where custody proceedings, in which the mother has participated, have been on foot for almost 2 years.
In a moving plea Miss Cox says that the welfare of the children must not be sacrificed on the altar of high-sounding moral principle. I consider that, at least other than in the very short term, the welfare of the children would not be prejudiced by an order for their return to Florida. On the contrary, in resolving some of the paralysing conflicts ranged above their heads in three jurisdictions and in enabling them to begin to enjoy again a relationship with each of their parents, I believe that the order would be likely to be for their benefit.
But, if I am wrong and if and to the extent that the order would not serve their welfare, it would not merely be an order loyal to abstract principle. It would be an order contributing in a very small way to the welfare of those numerous other children who live in the Contracting States across the world and whose parents would be deterred from abducting them and re-abducting them and secreting them by a growing public awareness that what would then happen would, in all probability, be an order for return.'
'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.
Bracewell J then expressed the reasons for her conclusion that from the time of the wrongful removal in April 1998 the mother had deliberately misled the father and had concealed the children's address from him until he discovered it in December 1998. The Hague return application was issued on 16 December 1999. The learned Judge then continued (from 55 E):
'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.'
The position developed in other jurisdictions
'I digress for a moment to say that whilst there is some suggestion in some English cases that a finding of "settled in a new environment" still leaves a discretion in the Court to order the return of a child, I must respectfully disagree with those views. If those views 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 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, 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.'
'The Court of Appeals noted that in the USA limitation periods were customarily subject to the principle of "equitable tolling", unless tolling would be inconsistent with the text of the relevant statute. In accordance with this principle the one year time limit was only due to commence on the date that the father located his daughter. The rationale being that otherwise an abducting parent who concealed children for more than a year would be rewarded for their misconduct by creating eligibility for an affirmative defence which was not otherwise available.'
'the language of the Convention is unambiguous, measuring the one-year period from the "date of the wrongful removal or retention."… It might have provided that the period should be measured from the date the offended-against party learned or had notice of the wrongful retention, but it does not. That is not surprising, since the evident import of the provision is not so much to provide a potential plaintiff with a reasonable time to assert any claims, as a statute of limitation does, but rather to put some limit on the uprooting of a settled child. Thus, even in the unlikely event that the potential plaintiff had no notice of the wrongful retention until after a year had expired, it is the Convention's prescription that the child who is settled in a new environment ought not to be ordered returned under the Convention's auspices.'
'However, this court is not convinced that the one-year period referred to in Article 12 is a statute of limitations. A petition for the return of the child is not barred if it is filed over one year from the date of removal. Rather, the drafters of the Hague Convention decided that after the passage of a year, it became a reasonable possibility that the child could be harmed by its removal from an environment into which the child had become settled, and that the court ought to be allowed to consider this factor in making the decision whether to order the child's return. This potential of harm to the child remains regardless of whether the petitioner has a good reason for failing to file the petition sooner, such as where the respondent has concealed the child's whereabouts. There is nothing in the language of the Hague Convention which suggests that the fact that the child is settled in his or her new environment may not be considered if the petitioning parent has a good reason for failing to file the petition within one year.'
'Brussels IIA' and 'the 1996 Hague Protection Convention'
'until the child has acquired a habitual residence in another Member State and:
a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.'
1 In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and
a each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
b the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.
3 So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.'
'Article 7 (wrongful removal or retention of the child)
46 The Special Commission had not been able to reach agreement on a text determining jurisdiction in the case of a wrongful removal or retention of the child within the meaning of Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Diplomatic Conference succeeded in doing so after long discussions.
The underlying idea is that the person who makes a wrongful removal should not be able to take advantage of this act in order to modify for his or her benefit the jurisdiction of the authorities called upon to take measures of protection for the person, or even the property, of the child. But, on the other hand, the wrongful removal, if it persists, is a fact that cannot be ignored to such a point as to deprive the authorities of the new State, which has become that of the new habitual residence of the child, of this jurisdiction over protection. The difficulty consists therefore in determining the temporal threshold from which jurisdiction would pass from the authorities of the State from which the child has been wrongfully removed, to those of the country to which he or she has been taken or in which he or she has been retained.
This difficulty is partly resolved, at least as concerns rights of custody, by Article 16 of the Hague Convention of 25 October 1980 mentioned above, under the terms of which, after having been informed of the wrongful removal or retention of the child `the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.' A provision of the Convention confirming the primacy of the 1980 Convention would have, for questions of custody rights, dealt with the problem, but only in the relations between Contracting States of the future Convention and States Parties to the Convention of 25 October 1980 (see, in this sense, Art. 50 below). A specific general provision was nonetheless necessary in order to resolve this question in a uniform way in respect of all the Contracting States, whether or not they are Parties to the Convention of 25 October 1980. Article 7 goes in this direction.
47 The first paragraph maintains the jurisdiction of the authorities of the Contracting State in which the child had his or her habitual residence immediately before the wrongful removal or retention, until the time when the child has acquired a habitual residence in another State and certain other conditions are fulfilled. In maintaining this jurisdiction, the text does not presume that the child has retained, more or less fictitiously, his or her habitual residence in the State from which he or she was wrongfully removed; it accepts, to the contrary, the possibility of a loss of habitual residence in that State, but it is intended to avoid that, during any period of hiatus between the loss of the old and the acquisition of the new habitual residence, jurisdiction might pass to the authorities of the State on the territory of which the child might be simply present in accordance with Article 6, paragraph 2 (see above). In this period of instability for the child, it is indeed desirable to avoid too frequent changes of jurisdiction.
Moreover, it does not suffice, in order for the authorities of the State of the former habitual residence of the child to lose their jurisdiction, that the child has acquired a habitual residence in another State. Other conditions must yet be fulfilled, which the Convention presents in an alternative manner, following as closely as possible the substance of the conditions posed by the Convention of 25 October 1980.
49 b In the absence of acquiescence in the wrongful removal or retention, the second branch of the alternative which could bring about the loss of jurisdiction on the part of the authorities of the child's former habitual residence is constituted by the conjunction of the three following conditions: i) residence of the child in the State of his or her new habitual residence for a period of at least one year after the holder of rights of custody has or should have knowledge of the whereabouts of the child; ii) the lack of any request for return, presented during this period and still pending; iii) the child being settled in his or her new environment (Art. 7, paragraph 1 b).
These conditions bring to mind those which are posed by Article 12 of the Convention of 25 October 1980. This text permits the requested authority not to order the return of the child where the proceedings for return have only been commenced after the expiration of a period of one year and it is demonstrated that the child is settled in its new environment. The discordance arises from the fact that, in the Convention of 25 October 1980, the period of one year starts with the removal or retention, while in the new Convention, as indicated above, this point of departure is later. Therefore, one cannot eliminate the hypothesis in which the authorities of the State to which the child has been removed or in which the child has been retained are not bound to order the return of the child B which might make one think that the child's habitual residence has been transferred to that State and that its authorities have acquired jurisdiction, in any case under Article 5 of the 1961 Convention, to take measures of protection and decide in particular on custody and rights of access B while this jurisdiction over protection would still belong, under the new Convention, to the authorities of the State in which the child had his or her habitual residence immediately before the wrongful removal or retention. If, in this hypothesis, the authorities of this latter State, which have jurisdiction under Article 7 of the new Convention, decide to change the custody rights, it seems that the authorities of the State to which the child has been wrongfully removed will have to recognise and enforce this decision in accordance with Articles 23 et seq. of the new Convention. But if this State is not a Party to the new Convention and is a Party only to that of 25 October 1980 (or even to the Convention of 5 October 1961), it will not be bound to recognise this decision; and it may, it seems, consider itself alone to have jurisdiction.
The meaning of 'settlement'
'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.
[and then, after referring to the phrase 'a long-term settled position' used by Purchas LJ 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 in so far 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 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 it own peculiar facts, and I have considered all the circumstances set out in [the evidence and submissions]. …
I find that it is early days in relation to any question whether or not the children are settled and I am not satisfied that the mother has so demonstrated.'
'Nowhere in the [Australian implementing] 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.'
'33 Firstly the notion that the abductor "must establish the degree of settlement which is more than mere adjustment to surroundings" 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".'
My findings and conclusion re 'settlement'
i) Since the wrongful removal in July 1999 S (who was 9 years 5 months old when these proceedings commenced last October) has lived in the care of M in England and in the same city.
ii) After staying for a month with a relative, she and M lived for one year at one address, and then at their present home for the 38 months prior to institution of these proceedings. This child has therefore not lived a nomadic life. Her mother has not so much been 'on the run' with her but rather has 'gone to ground'.
iii) The last move just referred to did not involve a change of school, and thus S has attended the same school since September 1999 when she was 5.
iv) S's home routines have followed a regular pattern in that M has worked throughout, since October 2000 in continuous employment as an administrative officer for a government agency.
v) S has maintained relationships with various members of her maternal extended family living in Ireland and England, but has had no contact of any sort with F.
i) From her school, whose head-teacher has written of the close and caring relationship between mother and daughter; of S's development in confidence and self-esteem; and of her excellent progress educationally, socially and in extra-curricular activities such as French classes, Brownies and sports. The head-teacher also comments favourably about the strong friendships S has made amongst her peers; her popularity and good behaviour; and the positive aspects of her (and M's) participation in parish activities through their involvement with their church. My comment is that S appears to have developed inter-dependence with others as she has developed in age and maturity, and has formed and forged relationships outside her home and beyond and beside her immediate carer, her mother.
ii) From a local authority social worker who carried out an individual assessment when S came to their attention and into their physical care under a police protection order and subsequently in the early stages of these proceedings. Notwithstanding the child's prompt and recent removal from home at that point she was described as not appearing to be emotionally disturbed by these events but presenting as an emotionally stable child, able to express herself clearly, and demonstrating clear attachment with M. The social worker recorded information confirming S's involvement in school, social and community activities. She wrote 'she has built a life [in the locality], has friends and is held in very high regard in her local school. … She has very little recollection of her life in Los Angeles.' The conclusion reached by the social worker was that there were no child protection concerns (save an anxiety that S's identity had been changed); social services (from their perspective) had no role to play; that M had the capacity and ability to meet her needs; and that it was not in S's interests to remain in local authority care. She was assessed as articulate with good understanding, clear and concise use of language and excellent conversation skills; of above average intelligence for her age; of an independent disposition, well able to express her wishes and feelings; a child who when asked to 'describe things in her life' replied 'very good'.
iii) When seen by a woman police officer on the day of her removal from M, S commented that she felt safe living as she did, loved her school and did not want to leave. She was opposed to the prospect of returning to America and made reference to unhappy recollections of time spent with F.
iv) Friends and neighbours from the church and school, and S's uncle, bore witness to the stability and fulfilment of various interlocking aspects of S's life as it has developed over time.
i) This is an extreme example of deliberate concealment involving the fabrication of new identities for M and S. M's evidence deals with the manner in which she obtained birth certificates in assumed names selected from gravestone inscriptions. Mr Setright describes them as a family in flight whose underlying lifestyle is unstable, secretive and based upon a web of lies. He comes close, as I understand him, to suggesting that upon such basis a child can never become settled. But I disagree: it does seem to me to matter significantly whether flight and the concealment last five minutes, five months or five years. From this child's perspective she had been brought to what has become a haven since she and M came to live in their penultimate home, and she started at what has remained her school.
ii) Rumbling along beneath the apparently calm surface has all this time been the deceptively quiescent volcano, representing the everyday risk of being found, which indeed erupted last October. Settlement on such a false-secure basis is not really settlement. Again, were this proposition to be accepted, it would seem impermissibly (in my view) to follow that article 12(2) is not available to benefit any child whose parent has escaped detection.
In the alternative …
i) She suffered physical and emotional abuse and had (and retains) reason to fear threatened both physically and psychologically by F's behaviour which, she contends, was intensely manipulative and obsessive.
ii) During cohabitation he demonstrated a high degree of irresponsibility to her and to S both in terms of providing secure accommodation and financial support.
iii) He resorted to exceptionally deceptive and manipulative behaviour fraudulently to secure welfare benefits on the false basis that he and M lived separately.
iv) He obtained court orders on a deceptively inaccurate factual basis.
i) He has deliberately misstated the position in relation to criminal proceedings which have been instituted against her, in particular by asserting that no warrant for her arrest had been issued.
ii) He has expressed his determination to see her imprisoned.
iii) He has behaved bizarrely and has demonstrated irrationality in the tone and content of letters he has written to S, to M and to others.
iv) His manner of intended presentation to S (in letters from the contents of which she was hopefully shielded) of two supposed half-sisters, whose initials are K and K, lacked consideration (at the least) and is further evidence of irrationality and lack of consideration for the child.
v) He has been inconsistent concerning the paternity of K and K which he has sometimes asserted.
vi) Grave concerns are raised by his convictions in April 2000 for serious emotional and physical abuses perpetrated on K and K are compounded by his disingenuous presentation of incomplete and/or inaccurate information concerning these events and any appeal against his conviction and sentence.
vii) He may be inappropriately motivated to generate publicity concerning this case and the issues involved, regardless of potential adverse consequences for S.
viii) There are grounds to believe he will not comply to undertakings he made to the English court.
The way forward