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Law -
The judgment is being distributed on
the strict understanding that in any report no person other
than the advocates or the solicitors instructing them (and
any other persons identified by name in the judgment itself)
may be identified by name or location and that in particular
the anonymity of the child and of the adult members of her
family must be strictly preserved.
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Henry Setright QC (instructed by Reynolds Porter Chamberlain)
for the Plaintiff Father
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
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Mr Justice Singer:
Background
1. On 12 December 2003 I handed down a judgment [2003] EWHC
3065 (Fam) in this case, which has been reported as Re C (Abduction:
Interim Directions: Accommodation by Local Authority) [2004]
1 FLR 653. There I considered the basis and extent of the
court's power to give directions under section 5 of the Child
Abduction and Custody Act 1985 (CACA), and in particular the
power to direct a local authority to make such arrangements
as are necessary for a child to be placed with an appropriate
person, institution or other body where such a course is necessary
'for the purpose of securing the welfare of the child concerned
or of preventing changes in the circumstances relevant to
the determination of the application'.
2. Between 1 and 3 March 2004 the substantive hearing of the
father's originating summons seeking an order for the return
of the child pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction resumed part-heard
before me. This is my judgment in relation to that hearing,
which should be cited in any report as Re C (Abduction: Settlement).
3. For the factual background I need do no more for present
purposes than to repeat what appears at [3] of the earlier
judgment. 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 was 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
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.
Just before the first hearing before me on 17 October 2003
S had on 15 October 2003 been removed from M and placed pursuant
to a police protection order in foster care provided through
the good offices of the relevant local authority.
4. To bring the history up to date, S was reunited with M
on 31 October 2003 subject to a variety of conditions, including
the tagging order which (at the suggestion of M) I had made,
and with which the earlier judgment also deals. M and S were
seen by a Cafcass officer at their home on 19 November 2003
pursuant to a direction I had made, for a report to be prepared
dealing in particular with S's maturity and any objections
to her return to America within the terms and meaning of article
12, and the officer's observations concerning her degree of
settlement in relation to article 12. The Cafcass officer
arranged for contact to take place, observed and supervised
by her, on 24 November 2003. That contact seemed to go encouragingly
well. Sadly the same cannot be said of the next attempt at
direct contact which took place on 20 December, when M was
to be present throughout. Whatever the reasons for whatever
took place (and both are highly contentious) this was in the
result a disaster, although (once it becomes clearer to the
parties whether or not S is to return to America) a setback
which may hopefully be surmountable. There has only been indirect
contact since then. No clear picture emerges, on the written
evidence before me, to establish the true reasons for or the
extent of the child's distress arising from that incident.
5. In the course of the hearings before me last December both
parties had expressed interest in availing themselves of the
opportunities for mediation available, in appropriate cases,
through Reunite. To facilitate what might have been a productive
alternative or adjunct to the court process, I had in an order
dated 17 December 2003 included a declaration that:
'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.
6. 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.
7. M seeks to justify, or at least to explain, what she did
by reference to what she alleges was the course of conduct
to which F subjected her and the child during and after cohabitation.
Those are matters with which I will deal when considering
the quality of the defence which M raises under article 13(b)
of the Convention. But at this point may I simply acknowledge
that, as between these adults, M has seriously wronged F by
what she has done. If the issues were simply adult issues
then it would be easy, and reasonable, to adopt the standpoint
that it would be morally objectionable to permit her to derive
benefit or advantage from that course of conduct.
The introductory questions of law relating to article 12(2)
8. When I adjourned the hearing last December I had canvassed
with counsel the difficulty which, as a matter of first impression,
I felt in aligning my preliminary understanding of article
12(2) with the relatively limited observations upon that provision
contained in English caselaw. Counsel agreed that there did
appear to be a point of substance, and accordingly I invited
Cafcass Legal to instruct counsel to attend the adjourned
hearing as a friend of the court (without involving any representation
of S) to provide me with assistance concerning the provisions
relating to settlement and to the one-year period specified
in article 12 of the Convention. Thus it was that Mr Michael
Nicholls came back into the case to present submissions on
these questions alone, but did not participate beyond the
point where I made my ruling on what I will call the introductory
questions of law posed below. I am very grateful to all counsel
for the depth and breadth of their researches which have helped
and enabled me to form my view of the meaning and import of
article 12.
9. The Convention must of course be read as a whole, but two
key provisions are engaged for present purposes once (as in
this case) it is established or conceded that the child in
question was habitually resident in the requesting state at
the time of the wrongful removal or retention, and that that
removal or retention was in breach of the rights of custody
of the parent left behind. Those provisions are articles 12
and 13 which are (so far as material) in the following terms:
Article 12
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.
…
Article 13
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.
…
10. A further question arises about the effect of article
18, which provides:
Article 18
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.
11. The proceedings in this case were perforce commenced more
than a year after the date of the wrongful removal, F having
been kept in ignorance of his daughter's whereabouts from
July 1999 until last October. Article 12(2) (as we have come
to call it) therefore applies. Three questions of law as to
the interpretation and effect of that provision 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?
12. I reached the following conclusions, and ruled accordingly
during the second day of the March hearing (reserving to this
judgment my detailed reasons).
• 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
13. Upon this analysis, clearly the first question for consideration
in the light of the documentation filed in the case (for I
was not asked to nor did I hear any oral evidence) was whether
S was settled in her new environment, for if so the Hague
Convention application fails irretrievably. That is indeed
my finding, for the reasons which I will explain below. But
I will also consider what the position would be if my conclusions
in relation to settlement are wrong. The final parts of this
judgment therefore deal with my decisions concerning the article
13 defences raised of S's objections to an order for return,
and the contention that to order her return will give rise
to 'grave risk that ... return will expose the child to physical
or psychological harm or otherwise place the child in an intolerable
situation'. Upon the basis of the existing caselaw I conclude
that neither defence would be made out.
Interpretation of article 12(2)
14. Mr Nicholls submits that the only rule of direct jurisdiction
to be found in the Convention is article 12, and that the
meaning of the text is clear. Where wrongful removal or retention
is established within the terms of article 3, then article
12(1) requires the relevant authority in the requested state
to order 'the return of the child forthwith' to the state
of habitual residence. That order is mandatory (subject to
article 13) where proceedings are commenced within a year
from the removal or retention.
15. If that year has elapsed before proceedings are commenced
the authority concerned 'shall also order the return of the
child' (but not expressly, be it noted, 'forthwith'). That
obligation to order return is also subject to article 13.
16. If, however, 'it is demonstrated that the child is now
settled in its new environment' then (submits Mr Nicholls,
supported by Miss Ball for M) the use of the word 'unless'
preceding that phrase not only removes the obligation to order
return but renders it impermissible to do so. If in such a
case there is no power to order return, then there is clearly
no room to imply a discretion to order return once a finding
of 'settlement' has been made.
17. A discretion not to order return does arise as a result
of the express words of article 13, to the effect that the
relevant authority of the requested state 'is not bound to'
(but therefore still may) order the return of the child if
either of the two 'exceptions' under article 13(a) or (b)
is established by the person opposing return. Similarly the
next paragraph establishing what in shorthand can be described
as the 'child's objections defence' envisages that the relevant
authority 'may also refuse' to order return, giving rise to
a like discretion to order return notwithstanding established
objections.
18. English and other courts have consistently construed article
13 in this way. The exceptions or defences are not knockouts.
They simply open the door to the option, exceptionally, to
decline to order return. The law reports show many examples
of cases where courts exercise this option to order return
notwithstanding an established defence, usually when the court
concludes that the importance of maintaining the underlying
policy purposes of the Convention outweighs the consequences
of consent or acquiescence, the article 13(b) risk, or the
strength of the child's objections. The classic statement
of the ingredients of this balancing exercise is the judgment
of Waite J (as he then was) in W v W (Abduction: Acquiescence)
[1993] 2 FLR 211.
19. But there is nothing express in the wording of article
12 to require, nor does its structure leave scope for any
implication, that some analogous balancing exercise arises
in a settlement case. Stripped to its essentials article 12
has three mandatory requirements once wrongful removal or
retention is established:
• 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.
20. The fact that the obligation to order return may be lifted
if an article 13 'exception' is established does not impinge
on a case where there is neither obligation nor power to make
that order. Where the option to order return does not arise
because the Convention makes no provision for it, there is
no Convention balance to be struck.
21. Mr Nicholls submits in relation to article 18 that, again,
its meaning is clear. 'The provisions of this Chapter' to
which it applies are Chapter III, entitled Return of Children
and comprising articles 8 to 19 inclusive. Those provisions
of this Convention could only 'limit the power of a judicial
or administrative authority to order the return of the child
at any time' if the Convention code were to be read as supplanting
or suppressing the ordinary, internal, powers of those authorities
of the requested state. This is clearly not the case. In this
jurisdiction, for instance, the failure of a Hague application
may and often does lead more or less seamlessly to an investigation
of what is in the best welfare interest of the child in the
context of a Children Act 1989, or wardship or inherent jurisdiction
application, one outcome of any of which may be an order for
the child's return.
22. It would, on the face of it, be hard to read article 18
as conferring an additional or residual power to order return
under the Convention in a case which does not fall within
it.
The route to interpretation
23. Thus far, in considering the interpretation of the Convention,
I have dealt with what was submitted to me and what does seem
to me at first blush to be 'the ordinary meaning to be given
to the terms of the treaty in their context'. That phrase
is taken from Section 3 (Interpretation of Treaties) of the
1969 Vienna Convention on the Law of Treaties which applies
to treaties between States (article 1). The relevant provisions
are:
Article 31
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.
Article 32
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.
Article 33
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.
24. How does the postulated reading of article 12 fit with
the second requirement of article 31(1) of the Vienna Convention,
that ordinary meaning must be given to the terms of the treaty
'in the light of [the Hague Convention's] object and purpose'?
25. The objects and purposes of the Hague Convention are to
be found first in the terms of its preamble, and in article
1:
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 –
Article 1
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.
26. I need not rehearse the sound policy reasons which led
to the negotiation of the Hague Convention in the first instance,
and which subsequently have contributed to its spread and
development as a most efficacious international mechanism.
But for present purposes I have emphasised the use in both
the preamble and the opening article of the key word 'prompt'.
'Prompt' in this context does not refer to the separate requirement
(encapsulated in article 2) for Contracting States to 'use
the most expeditious procedures available' to secure the implementation
of the Convention's objects. 'Prompt' relates to the time
lapse between wrongful removal or retention and the 'return
of the child forthwith' to be ordered under article 12(1)
where the interval is less than a year: to be contrasted (I
repeat) with the less urgent obligation to order return envisaged
where more than a year has run.
27. That contextual meaning for 'prompt' is supported by two
(no doubt amongst other) observations of senior English judges.
In Re HB (Abduction: Children's Objections) (No 2) [1998]
1 FLR 564 Hale J (as she then was) at 568 said:
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).]
28. More recently, in Re C (Abduction: Grave Risk of Physical
or Psychological Harm) [1999] 2 FLR 478 (again a case within
article 12(1)) Thorpe LJ referred at 488E to the consideration
that 'this is intended to be a hot pursuit remedy'.
29. It does not seem to me that any of the materials which
form part of the contextual matrix and which are referred
to in article 31(2) of the Vienna Convention, or any such
agreement, practice or rules as are to be taken into account
under article 31(3), arise in relation to the interpretation
of article 12 of the Hague Convention. There is, in particular,
no scope to find that 'subsequent practice in the application
of the treaty' has established 'agreement of the parties regarding
its interpretation' so far as the settlement provisions are
concerned, as a review of some of the stances taken internationally
will reveal. Nor can I find any basis upon which to conclude
that any 'special meaning' was intended for the term 'settlement'
such as might invoke the rule in article 31(4) of the Vienna
Convention.
30. One strand of Mr Setright's submission was however that
recourse must needs be had to the 'supplementary means of
interpretation' permitted under the Vienna Convention's article
32 because the postulated exclusion of settlement cases from
the Hague Convention's ambit 'leads to a result which is manifestly
absurd or unreasonable' when set against the very high premium
which the Convention's framers put upon the importance of
ordering return forthwith, and the high hurdle erected by
the rigorous scrutiny to which article 13 defences are to
be subjected. I for my part do not accept that the interpretation
of article 12 which I will adopt leads either to any manifestly
absurd or unreasonable result, or to a meaning which is ambiguous
or obscure. I will deal below in greater detail with Mr Setright's
customarily powerful (but on this occasion less than compelling)
points on behalf of F.
31. Further support for the distinction between the objective
of returning promptly after the wrongful act takes place,
and the expedition which should attach to the procedures,
can be derived from passages in the Explanatory Report prepared
by Professor Pérez-Vera, to which courts have consistently
referred as an aid both to construction and to the underlying
thought processes of those involved in the negotiation of
the Convention.
32. The first observation which I make upon the Report is
that in section D from paragraph 27 onwards, entitled 'Exceptions
to the duty to secure the prompt return of children', the
Professor deals only with the article 13 defences (and with
article 20, not incorporated into English law by CACA, which
relates to the protection of human rights and fundamental
principles), but reserves article 12 for separate and distinct
consideration.
33. Professor Pérez-Vera deals with articles 12 and
18 together, in commentary commencing at paragraph 106, of
which the relevant parts are reproduced below.
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.
34. The comment in paragraph 107 that '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 examination of the
merits of the custody rights exercised over it – something
which is outside the scope of the Convention' encapsulates
both the problem and its appropriate resolution which, to
my mind, the Convention has adopted.
35. The principle enshrined in the preamble, that prompt return
to the state of their habitual residence is in the best interests
of children and best protects them from the harmful effects
of unlawful removal or retention is entirely laudable. But
it must surely at some point give way in factual circumstances
where that presumption is outweighed by the competing interest
of the child in not again being removed from a settled situation.
36. Article 12(2) draws the line. Where more than (and it
might well be much more than) the relevant year has elapsed
and where settlement is established, the framers of the Convention
decided that the interests of the child can no longer be generalised
to support a Convention order for return. Over that line the
Convention recognises that it is in the child's best interests
to investigate the merits. Investigation of the merits is
not however an activity to be undertaken in the context of
a Convention application. Once the relevant authorities in
the Requested State have received notice of a wrongful removal
or retention to their territory, article 16 requires that
they '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 ... .' This prohibition seems to me
further to reinforce the interpretation of article 18 which
I prefer, envisaging as it does a two-stage process, and rendering
permissible investigation of the merits in accordance with
domestic law once it has been decided that the treaty obligation
to return does not apply.
37. The decision to fix a one year time-limit is described
in paragraph 180 as 'a substantial improvement on the system
envisaged in article 11 of the Preliminary Draft drawn up
by the Special Commission.' What had been proposed was that
return would be mandatory if less than six months had elapsed
from the time of the abduction; but that where the child's
whereabouts were unknown the period might be extended to a
maximum of 12 months. The wording of the relevant paragraph
envisaged that where the location of the child was unknown
the six-month period would run from the time of discovery,
although the total time period could not exceed one year from
the date of the wrongful removal or retention. In that context
it is easy to understand how Professor Pérez-Vera referred
to the present provision as an improvement which clarifies
the Convention's application 'since the inherent difficulty
in having to prove the existence of those problems which can
surround the locating of the child was eliminated'. However,
those comments would be entirely unfounded and unjustified
if the same (or a similar) concept of 'time not running' was
still either required or permissible. This consideration supports
my conclusion in relation to the third of the questions of
law posed and answered at [11] and [12] above.
38. It is not conceptually surprising to find a clear time-limit
set beyond which this Convention does not extend if but only
if the necessary ingredient of settlement establishes justification
for tempering its impact. Without this degree of flexibility
it might be said that the Convention is too blunt an instrument.
One understands Professor Pérez-Vera's viewpoint that
although the time-limit might be arbitrary, nevertheless the
solution was the 'least bad' answer to the concerns which
had been raised. On the one hand there are cases where, after
return is ordered, investigation of the child's welfare by
the courts of the country of habitual residence demonstrates
that, on the merits and in the child's best interests, removal
should indeed be permitted. Conversely there will inevitably
be thoroughly unmeritorious cases (from an adult perspective)
when notwithstanding that concealment has cheated a left-behind
parent of the opportunity to pursue a Hague Convention application
before settlement can be achieved, the fact that the child
has become integrated in its new environment takes the case
outside the Convention.
39. Paragraph 109 of the Explanatory Report makes the point
that article 12 extends the obligation to order return no
matter how long it has been since the wrongful removal or
retention, subject only to settlement being established (or,
of course, the child attaining the age of 16). But the Report
also deploys the counterpoint that the obligation to return
'disappears' when settlement is established. That phraseology
is inconsistent with the existence of a Convention duty, or
even power, nevertheless to order return unless some discretion
is exercised not to make such an order.
40. The reference in the same paragraph to 'preserving the
contingent discretionary power of internal authorities in
this regard' I take to relate to the question of 'how settlement
is to be proved'. It points out that there is scope for each
country to establish its own rules as the Convention is silent
on the point. The French text refers to a 'pouvoir d'appréciation':
that margin of appreciation with which ECHR decisions have
made us more familiar. But certainly in this jurisdiction
it has been accepted that the task of establishing settlement
falls upon the party opposing what in its absence remains
a mandatory requirement to order return.
41. As to article 18, I draw assurance from the observations
in paragraph 112 that it 'imposes no duty', and that it 'underlines
the non-exhaustive and complementary nature of the Convention.'
The Professor furthermore refers to article 18 as a provision
which 'authorises the competent authorities to order the return
of the child by invoking other provisions more favourable
to the attainment of this end.' This is entirely consistent
with the final sentence of the paragraph, which specifically
refers (using the phrase that 'the return of the child may
be refused') to the situation which arises if, after more
than the relevant year has passed, settlement is established.
I do not take the use of the word 'may' as supporting any
implication that there is power to make such a return order
notwithstanding a finding of settlement.
42. Before I leave these passages of the Explanatory Report
I would like to draw attention to some conclusions which I
feel can validly be drawn from a comparison of the French
and English texts. The final words of the full text of the
Convention refer to both the English and French language versions
as being equally authentic. The side-by-side dual-language
publication of the Explanatory Report makes it clear at its
commencement, however, that the English text of that document
is a translation performed by the Permanent Bureau. Maybe
that is how an inconsistency has arisen which I hope it is
not too fanciful to suggest is illuminating, and from which
I tentatively derive some assistance as to the meaning of
'settlement' for the purposes of article 12(2). The French
phrase employed in the Convention for 'unless it is demonstrated
that the child is now settled in its new environment' is 'à
moins qu'il ne soit établi que l'enfant s'est intégré
dans son nouvel milieu'. One is therefore unsurprised in the
dual text of the Report for the most part to see derivatives
of the verb 'intégrer' level on the page with some
variant of 'settled'. But in paragraph 107 'l'intégration
de l'enfant' is rendered as 'integration of the child'. That
highlights what I believe is a nuance of meaning between the
two languages. Perhaps because of the reflexive formation
of the French verb, 's'intégrer' conveys to me more
of an activity than the rather limp 'is now settled', which
makes it sound as though gravity was all that might be required.
This marginally more symbiotic relationship with an environment
is also hinted at by Professor Pérez-Vera's use in
paragraph 109 of the words 'nouvel enracinement' (translated
as 'establishment in a new environment'). The concept of putting
down roots may be helpful when one comes to ask whether settlement
is established.
The position thus far in English law
43. I at once concede that the conclusions which I have recorded
at [12] run contrary to the flow of the rather brackish current
of reported judicial observation in this jurisdiction as to
the interrelationship of articles 12, 13 and 18, and upon
the impact of concealment on the question whether settlement
in the child's new environment has been demonstrated. To the
earlier decisions I now turn, with the opening observation
that I have of course considered long and hard before coming
to these contrary views: views which I have therefore thought
it necessary to attempt to justify at what may be unnecessary
and unhelpful length.
44. I confess that I find it surprising that combined research
has unearthed only five reported decisions which touch in
a relevant way upon article 12(2), notwithstanding that in
the 18 years during which CACA has been in force a very substantial
body of caselaw has been developed around the Convention's
provisions by the judges of the Family Division who have exclusive
first instance jurisdiction, with correction administered
as necessary from time to time by the Court of Appeal and
(occasionally) the House of Lords. I suspect that in part
the reason for this paucity of authority may lie in what I
hope may not immodestly be described as the efficacy with
which procedures to ascertain children's whereabouts are available
through the courts. Thus, if a child has indeed been concealed
in England or Wales it is extremely likely in most cases that
the means and resources available and routinely deployed will
lead reasonably rapidly to that child or the abductor.
45. The first relevant dicta come from Purchas LJ in the case
of Re S (A Minor) (Abduction) [1991] 2 FLR 1, at 24. He was
dealing with an appeal from the President, Sir Stephen Brown,
in a case where amongst the gamut of objections raised to
the return of a 12–year old girl to Minnesota was reliance
on article 12(2). The President had concluded that the evidence
in any event failed to establish settlement, and the Court
of Appeal found no reason to disagree with far less to upset
that decision. But, in delivering the leading judgment, Purchas
LJ then commented, at page 24:
'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.'
46. Nowhere in the judgment can I find explanation for the
view there expressed, that article 18 would give rise to any
discretion to order return even if settlement had been established.
The question did not fall for decision. I am unable to regard
this as an example of a considered expression of Purchas LJ's
opinion to which great weight would ordinarily attach. In
my respectful opinion it is not in these circumstances binding
upon me.
47. The next relevant reported decision is the first instance
case of Re N (Minors) (Abduction) [1991] 1 FLR 413. Here Bracewell
J considered the degree of settlement required to be demonstrated
before section 12(2) operates, involving both physical and
emotional components, a topic to which I return below. She
held that the mother (on whom the burden lay) had not demonstrated
that the children were settled to the necessary degree, an
unsurprising conclusion on the facts of the case where proceedings
were commenced one year and only two days after the abduction.
Bracewell J however went on to consider what the outcome would
have been if her decision on that point had been that settlement
was demonstrated, and at 416F stated that, 'then this Court
has a discretion under article 18 as to whether or not the
children should be ordered to return'. She repeated this reference
to such a discretion at 417C and at 419D without further elucidation.
48. Bracewell J was referred to in the course of argument
to Re S (supra), but observed (at 417 E) that there was 'little
judicial authority upon the interpretation of article 12.'
As with the Court of Appeal judgment in that case, whether
these observations about the existence of this discretion
were accurate or not made no difference to the outcome.
49. In similar vein in the next case, Re M (Abduction: Acquiescence)
[1996] 1 FLR 315 Thorpe J (as he then was) referred at 318
to article 12(2) 'opening the door to the exercise of a judicial
discretion' whether or not to order return, but again in the
context that the question did not arise unless the left–behind
Greek father demonstrated that the child's removal to England
was 'wrongful' in Convention terms. On the expert evidence
made available to the court in that case he concluded that
the state of uncertainty as to the interpretation of the relevant
but only recently-introduced provisions of Greek law was such
that the father failed to establish his case of wrongful removal.
The subsidiary questions (amongst them the applicability of
article 12(2)) did not directly arise, notwithstanding which
(at 320) Thorpe J 'shortly' stated his conclusion in the following
terms:
'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.'
50. As he decided that he would have found not only settlement
to be established, but also the mother's alternative case
of acquiescence, it is understandable that Thorpe J did not
in the event comment at all on how he would have exercised
the supposed discretion.
51. Next comes a decision of Wilson J in Re L (Abduction:
Pending Criminal Proceedings) [1999] 1 FLR 433. The ratio
of the decision to return the children to Florida under the
Convention was that the fact that there were pending criminal
proceedings which might result in the mother's arrest if she
accompanied them there did not create a grave risk that they
would be exposed to an article 13(b) situation. That was the
mother's primary contention, and it failed. The mother's second
defence sought to rely on article 12(2), but the factual evidence
upon which she relied for a finding of settlement had not
been deployed in evidence by the time of the hearing. Refusing
an adjournment which would have permitted the mother to remedy
this defect, Wilson J (at 440 H) said:
'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) [1991] 2 FLR 1, 24C, Purchas LJ described
what was required as a long-term settled position; and in
Re N (Minors) (Abduction) [1991] 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) [1992] Fam 106, 122E,
sub nom Re A (Minors) (Abduction: Acquiescence) [1992] 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.'
52. I have quoted from Wilson J's judgment at such length
to demonstrate fully the context in which, in that case, he
applied the discretion he conceived he would have had to exercise
if the mother's case had succeeded under either 12(2) or article
13(b). It clearly and strikingly demonstrates what has become
the ordinary response of English Judges to the very considerable
importance of Hague Convention policy considerations, including
the deterrent effect of return orders, even at the cost of
quite substantial short-term detriment to the particular child
or children in question.
53. But was Wilson J right to rely on the concession of both
counsel in the case that article 18 endows 'a power arising
within the Convention and thus by virtue of [CACA]'? That
led him on to adopt the analogy with the article 13 discretion
assumed and espoused in the earlier cases, whereas his own
instinct to consider article 18 rather in the context of powers
arising outwith the Convention was, I suggest, sounder.
54. That, on reflection, is now also the view of Mr Nicholls
who appeared for the father in Re L and who frankly accepted
in the course of discussion before me that the concession
to which he was a party was not sound in law.
55. Finally, one comes to another decision of Bracewell J
in Re H (Abduction: Child of 16) [2000] 2 FLR 51. There (at
page 55 G) she found that the mother had not established that
the children had become settled in accordance with what she
described as 'the ambit of the test' in Re N. But before arriving
at that conclusion she made a number of observations concerning
article 12(2) which I feel it necessary again to cite in their
entirety.
'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) [1999] 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.'
56. I confess that I have misgivings about the extent to which
Bracewell J appears in these passages to be attributing an
even more – indeed arguably an absolutely – restrictive
approach to article 12(2) in cases where there has been deliberate
concealment. I am unable to construe anything on page 441
of the report in Re L (included in its entirety in the passage
cited within [51] above) nor indeed elsewhere in Wilson J's
judgment in that case to support the assertion that 'time
in hiding cannot go to establish settlement', which smacks
of the 'tolling' approach adopted by some United States courts
and to which I will refer below.
57. Nor do I easily understand why, or how, the question of
fact whether the children are or are not settled can be influenced
by a consideration of how long the wrongdoing parent managed
to keep them concealed, or of how long after hearing of their
whereabouts it was before the left-behind parent commenced
proceedings. Such considerations might be relevant to the
question how a discretion analogous to that which arises under
article 13 might be exercised in the light of policy considerations,
but Bracewell J appears to suggest that it was not open to
the mother even to argue that she could rely upon settlement
as a defence.
58. My conclusion on the English authorities is that I am
unable to follow the obiter observations upon and the approach
to articles 12(2) and 18 which have hitherto been adopted
without, I venture to suggest, full or fully-argued consideration
of the essential question whether article 12(2) in effect
prescribes the limit beyond which the Hague Convention ceases
to operate if settlement is established in a more-than-one-year
case.
The position developed in other jurisdictions
59. I have been assisted by Counsel to carry out a review
of the position as it has developed on this question in a
number of other jurisdictions. I also acknowledge the helpful
commentaries in two textbooks The Hague Convention on International
Child Abduction (Beaumont & McEleavy: OUP, 1999) and International
Movement of Children: Law Practice and Procedure (Lowe, Everall
and Nicholls: Family Law, 2004).
60. The first jurisdiction to which I will refer is Australia,
where it appears (so far as could be ascertained by Counsel)
that this very question remains unresolved, whether article
12(2) defines the limits of the Convention's operation, or
rather whether establishment of settlement in a more-than-one-year
case gives rise to a 'quasi-article 13 discretion'. The lone
voice in favour of the former view has been Kay J (as he then
was) in the case of State Central Authority v Ayob (1997)
FLC 92-746. After quoting paragraphs 106 to 109 of the explanatory
report of Professor Pérez-Vera (set out at [33] above),
in a passage at 84,072 headed 'If the child has settled in
her new environment is there a discretion to exercise' he
said:
'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.'
61. Other first instance decisions have assumed or postulated
the existence of a discretion to order return notwithstanding
the finding of settlement: Director-General of the Community
Services v Apostolakis (1996) FLC 92-718, and Director-General,
Department of Families, Youth and Community Care v Thorpe
(1997) FLC 92-785. At appellate level however the position
has been expressly left open in two decisions of the Full
Court of the Family Court of Australia for full argument in
a case where the question directly arises: Director-General
of the Community Services v M and C (1999) 24 Fam LR 168,
and Director-General, Department of Families, Youth and Community
Care v Moore (1999) Fam LR 475.
62. I of course acknowledge that as with the English cases
Kay J's observations were obiter. There was no evidence before
him which could have led to a finding of settlement: indeed
the child had been kept in Malaysia for nearly 18 months before
being brought to Australia less than a month before the judgment
was delivered. And I also take account of the fact that in
M and C the Full Court (Nicholson CJ, Holden and Dessau JJ)
commented at [98] that they were not necessarily persuaded
that Kay J's decision is correct. For my part, however, I
must say that his views accord entirely with my own upon the
scope of the Convention on this point.
63. Looking closer to home, in Scotland in Soucie v Soucie
1995 SC 134 the Inner House of the Court of Session appears
to have assumed that the effect of article 18 is to give rise
to a discretion analogous to that under article 13, if ever
settlement is established. There is nothing in the report
of the case to indicate that any alternative construction
of the Convention was considered.
64. In the United States of America the debate concerning
article 12(2) has centred upon the correct approach to the
passage of time in cases of active concealment of the child,
rather than upon the question whether any discretion analogous
to that under article 13 arises. The approach adopted by some
courts and criticised by others is to 'deduct' time spent
in hiding from the computation of the year's passage necessary
to found the article 12(2) exception. This is known as 'equitable
tolling' and can be expressed either as a principle of equity
(with its objective to prevent a wrongdoer from benefiting
from such activity) or as an incident of a statutory limitation
provision. The approach therefore gives mechanistic effect
to the understandable reaction to concealment typified by
Bracewell J's observations in the passages I have cited from
Re H. A further consideration which emerges from the American
authorities is that nothing should be allowed which would
condone such undesirable parental behaviour, or which would
water down the deterrent impact of robust implementation of
the Hague Convention's laudable objectives.
65. Mr Nicholls' research demonstrated that Federal District
courts are split on the issue, and that no Federal appellate
court has spoken authoritatively on the point. The only decision
at appellate level which was drawn to my attention during
submissions was Lops v Lops, 140 F. 3d 927; (1998) United
States Court of Appeals for the Eleventh Circuit, which left
open the question whether equitable tolling may apply.
66. Since submissions before me concluded a further United
States authority on the tolling question has been notified
on the International Child Abduction Database (INCADAT: www.incadat.com)
maintained by the Hague Bureau. This is the decision of the
United States Court of Appeals for the Eleventh Circuit in
the case of Furnes v Reeves, decided on 10 March 2004. The
more generally important aspect of the decision may be that
Court's refusal to adopt the view established by Croll v Croll
229 F 3d 133 (2d Cir 2000), US Ct of Appeals, which held that
the right to determine a child's place of residence did not
constitute a 'right of custody' for the purposes of article
3 of the Convention. But for present purposes the interest
of Furnes lies in the fact that this was a concealment case
which, by virtue of the passage of time, fell within the literal
words of article 12(2). The Court of Appeals however sustained
the trial court's finding that the left-behind parent's application
(made over a year after the wrongful removal or retention)
had been made within the one year time limit, observing (to
adopt the words of the INCADAT summary):
'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.'
67. It might be suggested that such reactions have spilled
over too far into imbalance when they take courts beyond the
point recognised by Professor Pérez-Vera as where the
Convention obligation to return the child 'disappears' once
the child has become settled in its new environment (see paragraph
109 of the passage cited at [33]), and more than a year has
elapsed since the adult wrongdoing.
68. Finally, by way of two footnotes to this albeit only partial
review of the relevant authorities in other jurisdictions,
I wish to cite a passage from the case of Toren v Toren, 26
F. Supp. 2d 240; (1998) United States District Court for the
District of Massachusetts, to which Mr Nicholls has drawn
my attention. There District Judge George A. O'Toole Jr. made
some observations concerning article 12 (although as in so
many other cases they were not pivotal to the outcome). In
a case which on his conclusions did not in fact involve any
element of concealment, he observed:
'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.'
69. The report of the judgment contains no explicit reference
to any of the decisions on tolling. For all I know, the judge's
observations may in terms of US jurisprudence be the equivalent
of obiter, per incuriam or plain unsustainable. But I do nevertheless
draw some comfort from the fact that he has expressed a view
so much in accord with my own concerning the scope of the
Convention, and moreover because his comments concerning 'the
uprooting of a settled child' so aptly underline the regard
which the Convention shows for the welfare interests of a
child who after a minimum stipulated period has become settled
in a new environment.
70. To similar effect are the views expressed by District
Judge James L. Graham in Anderson v Acree, 250F. Supp. 2d
872; (2002) United States District Court for the Southern
District of Ohio, Eastern Division. Specifically in reference
to earlier reported decisions where effect had been given
to equitable tolling, the Judge said (at 875):
'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.'
71. As is by now perhaps only too fully apparent, I find myself
in agreement with those observations. My overall conclusion
therefore in relation to the United States cases is that the
concept of tolling to which a number of them give effect is
not one which should have any place in my approach to the
construction of article 12.
'Brussels IIA' and 'the 1996 Hague Protection Convention'
72. I am very conscious that with effect from 1 March 2005
the way in which article 12(2) (and other provisions) of the
Hague Convention operate will be 'supplemented' by certain
provisions of Council Regulation (EC) (No 2201/2003) of 27
November 2003 Concerning Jurisdiction and the Recognition
and Enforcement of Judgments in Matrimonial Matters and in
Matters of Parental Responsibility (repealing Council Regulation
(EC) (No 1347/2000)) (Brussels IIA). Modifications to the
Hague Convention will apply in cases involving any two EU
Member States (with the exception of Denmark, but including
all ten of the countries which acceded on 1 May 2004). The
Regulation will be directly applicable in the Member States
and will prevail over national law. The relevant provisions
of the Regulation will also prevail over the rules of the
1980 Abduction Convention (and, in due course, over the 1996
Hague Protection Convention, where, for instance, the child
concerned has his or her habitual residence on the territory
of an EU Member State, except Denmark: article 61(a) of Brussels
IIA).
73. Once the Brussels IIA Regulation is in force from 1 March
2005 article 10 thereof will provide that in relevant cases
of intra-EU abduction the Member State of the child's habitual
residence at the time of the wrongful removal or retention
retains jurisdiction (thus triggering the obligation to order
the child's return there under the Hague 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.'
74. Article 10(b) of the Regulation thus introduces the concept
that time does not begin to run (towards the year required
before the defence of settlement can arise, if one of the
four conditions is also met) until the claimant party 'has
had or should have had knowledge of the whereabouts of the
child.'
75. The wording of article 10 of the Regulation derives from
another international instrument which, although predating
Brussels IIA in conception and in its drafting, will very
likely only enter into force (so far as EU Member States are
concerned) after the Regulation does so on 1 March 2005. Article
7 of that earlier instrument, the Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation
in respect of Parental Responsibility and Measures for the
Protection of Children ('the 1996 Hague Protection Convention'),
will so far as relevant for present purposes provide:
'Article 7
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.'
76. What the framers of the 1996 Hague Protection Convention
had in mind emerges from a passage taken from [46], [47] and
[49] of the Explanatory Report on this Convention drawn up
by Paul Lagarde (www.hcch.net/e/conventions/expl34e.html):
'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.
Paragraph 1
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.
…'
77. The structure and terminology of article 10 of the Regulation
and of article 7(1) of the 1996 Hague Protection Convention
do seem to be incompatible with the principle established
in England that in relation to children, both of whose parents
have parental responsibility, the unilateral act of one cannot
change that child's habitual residence by wrongfully removing
the child to or retaining the child in another jurisdiction
(see Re P (GE) (An Infant) [1965] Ch 568 at 586). We may therefore
be faced with the need, in order to comply with the requirements
of these instruments as they come into force, to develop alternative
legal constructs for so fundamental and basic a building-block
as 'habitual residence' which, chameleon-like, may need to
change hue to reflect whatever is the particular background
against which it is to be understood and applied: whether
Hague 1980 un-supplemented (where one or both the relevant
countries are Contracting States to that Convention but are
outside the EC, or include Denmark); or Hague 1980 as supplemented
by Brussels IIA (where the relevant countries are both EU
Member States but do not include Denmark); or where one or
both States are part of the Hague 1996 community but are not
Hague 1980 Contracting States; or in the case of an intra-UK
abduction case, where 'habitual residence' is to be construed
to conform with the quite distinct 'one-year' provision to
be found in section 41 of the Family Law Act 1986; or where
(for instance) the phrase may need to be considered for some
wholly domestic purpose, such as to decide on jurisdiction
to entertain divorce proceedings. Other countries will be
developing their own judicial response to these conundra.
Perhaps this is what is intended to be conveyed by the idea
of an 'autonomous concept' which (as I very likely misunderstand
it) is EC-speak for a legal principle which is to be interpreted
and applied in the context of the international instrument
in which it is found rather than in accordance with any domestic
meaning which it may have achieved internally. If so, it would
seem that 'autonomous concepts' may need to take on the additional
nuance that they may vary significantly in the construction
to be applied to them according to which of a number of international
instruments is under consideration, so that the same word
or phrase will mean different things to different states in
different contexts and constellations. This could become quite
confusing. Indeed there are those who suggest it already is:
see the discussion at paragraphs 4.27 to 4.31 of International
Movement of Children: Law Practice and Procedure (op. cit.).
78. I simply draw attention to these developments, which introduce
a concept somewhat analogous to 'tolling': but they do not
affect my approach or my conclusion in the context of this
case. The fact that these changes to the operation of the
Hague Convention are to be introduced if anything supports
the proposition that such is not the effect of concealment
under the Convention as it was originally adopted and is currently
in force. Moreover, where one or more of the States involved
in a 1980 Convention application is outside the EC (or is
Denmark) the construction of article 12(2) will fall for consideration
subject to the text of that article which in this judgment
I have considered, unsupplemented and/or uncomplemented in
any way. Thus, in my view at least, these prospective changes
shed no light on the construction question with which I have
been concerned.
79. The European Community's objective (per the preamble to
the Regulation) is to create 'an area of freedom, security
and justice'. Realising that aim has brought in its train
these (and other) very considerable additional layers of complexity
to add to the already multi-faceted operation of interlocking
domestic, EC, 1980 Abduction and/or 1996 Protection Hague
Conventions (each of these at any given time with their own
distinct and growing Contracting State constituency), Council
of Europe, and non-convention sets of rules and procedures
to be invoked to deal with the problems of unilateral transfrontier
movement of children. Whether it has been proportionate to
add these 'supplements' to the Hague Abduction Convention
for the benefit of the numerically small group of affected
children within even the enlarged number of States where article
10 of Brussels IIA will operate (by comparison, for instance,
with the volumes of children which it is estimated are trafficked
for sexual and other services into and within the same area)
is perhaps not a topic for here, now, or me.
The submissions
80. Mr Nicholls in argument supported the construction of
article 12 which I have propounded, as did Miss Ball on behalf
of M. Mr Setright for F urged me to adopt a rigorous reading
of article 12 in combination with articles 13 and 18, concentrating
on the purpose and intent of the Convention rather than on
any simplistic approach.
81. I recognise the Convention's aims as universally beneficial
in their intent. They include the considerations that it is
in the welfare interest of abducted children to be returned
promptly to the country of their habitual residence, which
in turn will have the knock-on effects of deterring such abductions,
advancing comity and discouraging parental forum-shopping.
And of course I agree with Mr Setright that it is important
in pursuit of these aims that those charged with decision-making
in the various Contracting States should be both rigorous
and vigorous in the approach to the Convention which they
adopt, and should strenuously avoid being drawn into welfare
appraisals of allegations which fall short of the deliberately
high threshold set by the wording of article 13 with its in-built
supplemental discretion nevertheless to order return of a
child demonstrated to be within one or other of its exceptions.
The high burden upon the person seeking to establish that
the threshold is surpassed; the reluctance even then of the
English courts to refrain from ordering return; and the emphasis
given in the exercise of discretion to those very purposes
of the Convention to which I have referred, are all so generally
known and recognised that citation here of decided caselaw
is unnecessary.
82. But where I find myself at odds with Mr Setright is in
the constructional leap which he invites me to make, so as
to create in relation to article 12(2) a discretionary add-on
which the plain words of the Convention seem to me to rule
out. Unless my approach is flawed, there seems no room for
the application to article 12(2) of the same gloss which has
accrued around the article 13 discretion, which has had the
practical effect of limiting virtually to the point of extinction
the circumstances in which prompt return under article 12(1)
is not ordered.
83. Mr Setright also raised tentatively, if I may so, and
with restraint the question whether Human Rights Act issues
might be engaged if the operation of article 12(2) deprived
a left-behind parent of the right to a fair hearing as well
as of his or her enjoyment of family life. He pointed out
that the corpus of ECHR law in relation to the Hague Convention
is somewhat limited, and limited in scope to considerations
of enforcement. I do not however accept his submission that
such human rights considerations should lead the court to
construe article 12 very restrictively to avoid such risks.
In the first place, as it seems to me, the Convention draws
a clear and legitimate distinction, once the ingredients for
article 12(2) are established, which of its very nature promotes
and prefers, for legitimate reason, the rights of the child
before those of the left-behind parent. Moreover the failure
of the Hague application where article 12(2) applies is not
necessarily the end of the matter: the left-behind parent
is certainly able in this jurisdiction to pursue other remedies
designed to produce a fair trial on the merits, having regard
to welfare considerations which in that context are paramount.
84. Mr Setright understandably made no concession in relation
to the question whether the establishment of the article 12(2)
criteria gives rise to a discretion nevertheless to order
a return. Nor did he make any concession concerning the question
whether concealment of the child either prevents time running,
or precludes a parent from relying upon article 12(2). But
I hope that I do not misrepresent his position as being to
reserve the thrust of his arguments directed to the proposition
that, as a matter of analysis and fact, concealment and settlement
are such mutually inconsistent concepts that where the former
is present the latter cannot be established.
85. The burden of his proposition is that any apparent settlement
in a new environment which involves living a lie does not
deserve the word, however well integrated the child may appear
to be. Thus, on the one hand, if an ingredient in the circumstances
following the child's removal consists in obscuring or excising
important elements of the child's upbringing and heritage
(such as the child's identity and the relationship with the
left-behind parent) then settlement for the purposes of article
12(2) is not achieved, and the word itself should be interpreted
restrictively so as to lead to such a finding. Mr Setright
described how, inevitably, deliberate concealment of the child
by the wrongdoing parent involves imposing upon the child
a life which is to a greater or lesser extent false. Not only
does the child lose part of his or her life, but is made to
live a life which in some at least of its aspects is not genuine.
Evoking powerful imagery, Mr Setright likened the position
of a child living in such concealment to that of a child living
in a well-appointed house built on the edge of a slumbering
volcano. The sense of security which the child may feel in
such surroundings would be illusory, and self–evidently
so to an objective adult to whom the underlying instability
of the situation would be apparent. Living on the edge of
a volcano, suggested Mr Setright, was very much the situation
in which this mother and as a result this child subsisted.
For M must always be on guard, looking over her shoulder and
anxious lest she and the child be traced.
86. I recognise that these submissions have force, and that
this approach may well be thought consistent with the judicial
response as it has developed to the article 13 exceptions,
and to the natural human (and thus also judicial) response
to the notion that article 12(2) provides immunity and awards
the fruits of success to the parent who has acted wrongfully.
Furthermore, that result if sanctioned by the court may well
encourage others not only to abduct but also to conceal and
thus to frustrate the intended deterrent effect of the Convention.
87. Mr Setright suggested that the negativing impact of concealment
upon the attainment of settlement continues to operate no
matter how long the child remains in the situation of living
a lie on the brink of the volcano. Thus, it seems to me, the
logical conclusion of his proposition must be that until concealment
is at an end settlement cannot really commence.
88. I must confess that for a number of reasons such a cut
and dried but nevertheless strained approach to the meaning
of settlement for the purposes of article 12(2) does not seem
to me to be permissible. I prefer the proposition that each
case should be considered on its own facts, and that upon
that basis the fact of concealment may have different impact
in different circumstances. Every individual case should be
looked at in the round, without decisive or even predominant
weight being given as a matter of principle to any given factor
(including, where present, concealment) over others.
89. Another consideration potentially affecting the ability
of a child to attain settled status might be the irregularity
or illegality of the child's immigration status. The suggestion
was canvassed that comparisons might be drawn between what
was suggested might be the negative effect of unlawful presence
in this jurisdiction upon the acquisition of habitual residence,
when considering how settled the child could be said to be
when at risk (with the child's parent) of immigration control
and/or deportation. Even assuming, without deciding, that
the deceptions practiced by M to bolster concealment involved
some acts of illegality, I heard no submissions to suggest
that in this case any intervention by the Secretary of State
for Home Affairs might put C's residence here at risk.
90. But if such a case were to arise (or if I am wrong, and
it is a real possibility in this case) then some assistance
is in my judgment to be derived from the decision of the Court
of Appeal in Marks v Marks (Divorce: Jurisdiction) [2004]
EWCA Civ 168, [2004] 1 FLR 1069. The Court there held that
it is right to distinguish, between the manner in which 'habitual
residence' should be construed contextually rather than absolutely,
so as to allow to a court a margin of discretion in determining
whether or not an element of illegality tainting the entry
or stay within the jurisdiction of a spouse precludes the
acquisition of domicile of choice for the purpose of founding
jurisdiction to entertain divorce proceedings. Similar considerations
seem to me to apply when the mixed question of fact and law
under consideration is the degree of a child's 'settlement'.
But I stress that I heard no submissions in relation to this
decision, which was not cited to me in argument.
91. It is also for consideration whether the fact that a destabilising
event may occur in the future (deportation; the eruption of
the volcano) impairs before it even occurs such settlement
in the child's circumstances and way of life as has been achieved
and has become established. The chance or even perhaps the
likelihood of upset ahead does not self-evidently undermine
pre-emptively the settled nature of the situation. I will
revert to this when considering the dictum of Bracewell J
in Re N at 418C where she imported a requirement for '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'.
The meaning of 'settlement'
92. What therefore is it necessary to show to establish that
a child is now settled in his or her new environment?
93. In Re S Purchas LJ at 24 commented (on the facts of that
case) that '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.' That reference to 'a long-term settled position'
apart, the indicia of 'settlement' in English law have been
the subject of decision at first instance level only, in cases
already referred to above: Bracewell J's decision in Re N,
the decision of Thorpe J (as he then was) in Re M, and Wilson
J's case of Re L. A feature of the decisions has been a clear
intent on the part of the judges to require that settlement
be demonstrated to a high degree. That indeed has been the
thrust of the English authorities, even before the second
presumed hurdle of a discretionary power nevertheless to order
return has to be taken. For my part I certainly accept that
it is consistent with the overall philosophy of the Convention,
having regard to the twin requirement that there should be
more than one year's delay before the institution of proceedings
and that the child should be settled in his new environment,
that the burden upon the person seeking to rely upon the escape
clause should be significant rather than token.
94. Bracewell J in Re N set the tone in a manner which has
certainly guided (although not with universal approbation)
subsequent debate. The relevant passage commences at 417G
of the report in these terms:
'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.'
95. That (I repeat) was a case where the children in question
were 4 and almost 3, and the period between wrongful removal
and institution of proceedings was one year and two days.
As I have already suggested, it is unsurprising that in that
context sufficient settlement was not established. Moreover,
although throughout that period the children had been living
with their mother in England, they had done so initially at
their grandmother's home, and they had only been living in
their mother's own council house and attending school during
the month or so preceding the institution of proceedings.
96. In Re M Thorpe J emphasised the twin elements of emotional/psychological
settlement and physical settlement, but did not refer specifically
to future prospects and risks. After referring to Re N he
said at 321A that '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 distinguishing ingredient is the solidity and security
of the arrangements the mother has developed in taking advantage
of family support.' In the light of the length of the child's
relationship with his grandparents for 15 months of his 4
years, the judge was satisfied that settlement in his new
environment had been sufficiently demonstrated by the mother
for the purposes of article 12(2).
97. Wilson J in Re L, in the absence of factual evidence in
support of the children's settlement, did no more than invoke
Purchas LJ's Re S reference to 'a long-term settled position'
and Bracewell J's Re N observation that the position to be
demonstrated 'had to be as permanent as anything in life could
be said to be permanent'. As I read his judgment (at 441B)
he cast doubt upon rather than ruled out a parent's prospects
of demonstrating settlement in a concealment case where that
parent faced likely extradition proceedings. But the burden
of his judgment goes not to the ingredients of settlement
so much as to the manner in which the supposed discretion
should be operated to accord with the deterrent principles
of the Convention.
98. I was not referred to any other decision taken in this
jurisdiction that throws light upon the manner in which article
12(2) settlement should be defined and interpreted. There
has however been a fair amount of comment from abroad in particular
upon the proposition emerging from Bracewell J's Re N judgment
regarding permanence and looking to the future. Differences
of opinion have emerged, especially in the Australian jurisprudence
relating to article 12(2).
99. The dissension most clearly emerges in the case already
referred to of Director General, Department of Community Services
v M and C. At [12] and [13] the judgment of the Full Court
recites the key passages from the judgment of Bracewell J
in Re N, cited above, which had been adopted as the test by
the trial judge, Baker J. That judge's conclusion was 'that
the children had become well established environmentally in
the Australian community and emotionally attached to their
grandmother who has been their primary care giver over the
past two years.' At [51] and [52] the Full Court cast doubt
upon earlier Australian authority (including Graziano and
Daniels (1991) FLC 92-212) to the effect that 'the test must
be more exacting than that the child is happy, secure and
adjusted to those surrounding circumstances', and taking the
view that there is no warrant for reading more into the expression
'settled' than its ordinary meaning. At [62] the Full Court
dismissed as 'untenable' the proposition that because the
children needed counselling in relation to past abuse they
were therefore not settled. 'A person can be settled into
an environment and still experience severe problems.'
100. At [88] to [93] the Full Court considered the proposition
extracted from Re N that in considering whether the children
are settled it is necessary to look not only at the past and
present situation, but also into the future. In their opinion
the paragraph from that judgment at 418B, concluding with
the reference to permanence, contained propositions which
were not good law so far as Australia is concerned:
'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.'
101. It is to be noted that immigration issues and uncertainties
had been canvassed as indicia of lack of settlement, as to
which the Full Court at [93] left the question open for future
consideration but expressed the opinion that it would still
be arguable that the children were settled at the relevant
time.
102. The M and C approach was approved and adopted in the
subsequent Full Court case of Townsend v Director General,
Department of Families, Youth and Community Care (1999) 24
Fam LR 495. The Full Court considered more fully the rival
contentions: of (amongst others) Graziano following Re N that
it was necessary to 'establish the degree of settlement which
is more than mere adjustment to surroundings'; as against
the M and C 'ordinary meaning' test. The key passages in the
main judgment are as follows:
'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".'
103. The Re N formulation appears to have been adopted uncritically
in Scotland, for instance in the case (already referred to)
of Soucie. But there has been academic criticism of the proposition
that 'projection into the future' and permanence 'insofar
as anything in life can be said to be permanent' are constituent
requirements in Dicey and Morris on the Conflict of Laws (13th
edn., Sweet and Maxwell, 2000), at paragraph 19-096.
104. 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 as arguable one way, and thus no doubt
the other.
105. 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 that child would be a second dys-location, potentially
inflicting cumulative trauma.
My findings and conclusion re 'settlement'
106. On the evidence available to me:
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.
107. External observations of S in her environment include
the following:
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.
108. Furthermore on 19 November 2003 an experienced Cafcass
officer, Mrs Werner-Jones, met S and M at their home to investigate
and report on S's maturity and her objections to returning
to California for the purposes of the article 13 exception
relied upon by M; and to record her factual observations pertinent
to the settlement issue. She had been provided with the documentation
in the case as it then stood, including the local authority's
Initial Assessment. She also took the opportunity to visit
S's school and to speak to the head-teacher and to the class
teacher. Subsequently, on 24 October 2003 she observed the
first direct contact meeting between F and S.
109. Mrs Werner-Jones' observations concur with those of the
school and the social worker, and her conclusion was that
S's level of maturity and understanding was commensurate with
her age. I will deal separately with what she reported on
the question of S's objections, none of which seem to impinge
on the settlement issue, except perhaps that S made clear
her attachment to her school, teachers, class friends and
Brownies, as well as to M and M's family.
110. In relation to settlement, Mrs Werner-Jones primarily
recorded information derived from the teachers which expands
upon but is consistent with the picture painted in the head-teacher's
letter. S is described as 'hitherto happy and well rounded'
although 'destabilised' by the period of foster care and the
uncertainty clouding her future. For my part such uncertainty
and the setbacks it produces seem to me to be inevitable,
whether S is settled or not, and thus do not of themselves
reflect on that question one way or the other. I am only sorry
that this judgment seems unlikely to resolve the pattern of
her future, and that a further period of uncertainty, for
her and her parents, may lie ahead.
111. What seemed, at that stage, encouraging and (if I may
so) refreshingly unusual in my experience in cases at all
like this is that S at that stage had an unrepressed natural
curiosity about F, and had been kept in one way in touch with
him through photographs around the home (including one above
her bed). S welcomed the prospect of meeting F even though
the recollections of him which she expressed were negative.
That first meeting it seemed, as I have said, to go encouragingly
well although I know that a subsequent meeting, for whatever
reason, did not.
112. Recollections of life with her father apart, S is said
to retain very little by way of memories of her life in America.
This is hardly surprising, as she was effectively removed
from that country in December 1998 when she was only four-and-a-half.
She thus spent less than the less sentient first half of her
life there. If she retained substantial meaningful connections
with that country, then that might impact on the question
whether she is settled in her new (or, in terms of its duration,
in this case not-so-new) environment here: see the approval
of observations to that effect in the Florida District Court
decision in the case of Bocquet v Ouzid (2002) 225F. Supp.
2d1337 at 1349. But although in some case that may be a valid
consideration it would not apply here, even though, (as well
as F) S has relatives on her mother's side who live or lived
near the family during their time in California.
113. I regard that as an adequate summary of the features
of the evidence which I find to be supportive of a finding
of article 12(2) settlement. To be set in the balance to contrary
effect are the following considerations upon which Mr Setright
relied.
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.
114. My conclusion on these adverse aspects comes to this.
I do not suggest that in no case could they be relevant, or
that in some they might not be determinative. Looking at all
the circumstances of this case in the round they give way
to the positive factors earlier enumerated. In my view S was
by October last year settled in her new environment within
the meaning and intent of article 12(2), and on that basis
the application for her return to America under the Hague
Convention fails.
In the alternative …
115. The length of this judgment must however be further extended,
for I must deal with a number of 'what-if' scenarios.
116. If I am wrong in concluding that once settlement is established
in a more-than-one-year case no discretion nevertheless to
order return arises, then in this case I would emphatically
exercise such discretion against the disruption which such
an order (made summarily without consideration of the merits)
would risk wrecking. I believe that response would be self-evidently
justified upon the basis (already discussed) that a finding
of settlement should ordinarily take a case outside the procedures
and approach of the Convention's scheme and into the realm
envisaged by article 18 where a welfare investigation should
precede potentially disruptive as opposed to peremptory restorative
return.
117. Such a welfare-based investigation can take place here.
This is not necessarily the most convenient jurisdiction for
such an enquiry, particularly from F's point of view. As against
that, the quality of what has become the status quo which
has developed in S's life can readily be investigated here
with input from her teachers and others involved over time
in her daily life. Furthermore, in S's welfare interests the
question whether she should continue to make her home in England
would demand decision before and not after the current continuity
of her life is broken, even for only however long the case
might take to reach a conclusion in the other jurisdiction.
118. If I am wrong to find settlement established, so that
article 12(2) is not engaged at all, other issues open up
concerning which I should clarify what my findings would be,
were those issues thus to become material to the Hague application
for return. I propose to do this in a summary fashion only,
for I heard no oral evidence and the materials upon which
my conclusions are based (should they fall for reconsideration
elsewhere) are as accessible to another court as to me.
119. Furthermore, in particular in relation to the article
13(b) exception, reliance was placed by M on a number of potentially
alarming aspects of F's alleged behaviour. If S's future home,
home state and contact arrangements fall to be determined
in this jurisdiction, then it may prove unhelpful and indeed
prejudicial to one party or another for this judgment to give
any even provisional indications of where I think the truth
may lie. I thus do take very much into account an observation
Mr Setright made in closing submission. He pointed out that
there were allegations made against F with which he had not
attempted to deal in his written evidence. Mr Setright suggested
that perhaps he had chosen to maintain silence on these topics
because the advice he received about the impact of the allegations
could well have been that the extremely restrictive response
to an attempt to raise an article 13(b) exception which English
case law has developed is such that the allegations, even
if left unchallenged or unexplained, would not surpass the
very high threshold that has been set.
120. I shall take the child's objections exception first.
What emerged very clearly from the interview with the Cafcass
officer was S's perception that a return to America would
involve leaving her mother, as well as losing contact with
family, school, friends and teachers. She had anxieties about
what life living with F would entail. Her objections, as expressed,
were inextricably bound up with the concept of a change of
carer. It is unimportant for present purposes how she came
to equate the two concepts: the consequence is however that
her objections to return are tainted by this confusion of
thought. It may indeed reflect upon the level of her maturity
and capacity to deal with these complex and emotionally charged
issues.
121. It is unnecessary for me to take this question any further.
I am unpersuaded that this defence has been made out. I have
of course considered the valuable points of principle set
out by Ward LJ in Re T (Abduction: Child's Objections to Return)
[2000] 2 FLR 192. The onus is upon M to establish this exception
and she fails.
122. I find more problematical M's assertion under article
13(b) that 'there is a grave risk that … her return
would expose the child to physical or psychological harm or
would otherwise place the child in an intolerable situation.'
Of course I recognise that, in this jurisdiction, the standard
set to meet that test is exacting. But I am not sure that
I agree, from the perspective of a judge exercising Hague
Convention jurisdiction, with the position which Mr Setright
represented (genuinely and professionally, as of course I
accept) as his client's: that the concerns raised could not
in the current state of English caselaw add up to this exception.
I would be unhappy if the Conventionally correct judicial
response to the cumulative impact of these concerns (if soundly-based)
had to be that they stopped so far short of the requisite
scale to cross the hurdle and open the door to the discretion.
But it may be that I am aberrantly soft in this area: as witness
two of my decisions which were corrected on appeal in TB v
JB (Abduction: Grave Risk of Harm) [2001] 2FLR 515 and Re
H (Abduction: Grave Risk) [2003] EWCA Civ 355, [2003] 2FLR
141.
123. However, for the reasons I have given, it seems entirely
desirable that I should avoid expressing any view about whether
M's allegations or any of them are made out on the present
state of the evidence, and having regard to the fact that
the same issues may figure in a welfare-based investigation
to be conducted in this jurisdiction. In the event that the
correctness of my decision that the article 13(b) defence
is not made out in this case as the law here has developed,
requires reconsideration, then the detail can be developed
from the documentation.
124. M alleges that during the period prior to her departure
from America:
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.
125. She alleges that since her departure from America:
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.
126. If the case turned on a positive finding in relation
to either of the article 13 exceptions advanced, and if (contrary
to the conclusions I have stated) I had decided that either
or both exceptions were established, then I would have regarded
the very considerable length of time which in fact S has spent
here, and the undoubted connections she has made here, as
justifying exercise of the discretion against ordering her
return.
127. If I am wrong on all counts, and obliged consistent with
the requirements of the Hague convention and CACA to order
S's return, then I would certainly have regard to the fact
that on any view these proceedings did not commence until
more than a year after the wrongful removal. The obligation
to order S's return would thus not need, pursuant to article
12(1) to be 'forthwith'. If such had been or should be my
conclusion then, in the absence of any agreement between the
parents, I would have wished to regulate an orderly but not
over-hasty return, yet not one so drawn-out as thereby to
prolong anguish. The time until the end of the school year
and to permit an opportunity for some holiday time here before
departure would also allow F to demonstrate his ability to
put in place the necessary structures and arrangements and
his willingness to honour whatever undertakings might be agreed
or (if appropriate) imposed, as pre-conditions to S's return.
In fact, by the conclusion of the hearing before me F had
not clarified his position in relation to requests made on
behalf of M in an attempt to resolve practical problems in
the event that S's return were ordered. I emphasise that the
expectation would of course only be that such 'holding' arrangements
should continue simply until replaced by whatever a United
States court seised of the issues between the parents might
deem more appropriate.
The way forward
128. I anticipate that whether in Children Act or in wardship
proceedings questions concerning S will need determination.
M will seek to assure her continued residence here and with
her. F may seek an order for her return to America and may
seek an order for her to live with him. On any outcome it
is likely that contact will need to be regulated. I shall
give directions as to the timetabling of evidence, including
the provision of any reports, and hope to be able to fix a
date for what should on this basis be the determinative hearing
which should settle S's future.
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