The court considered the degree of settlement that had to be proved under the Act: ‘The second question which has arisen is: what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal presumptions reflect the norm, and the presumption under the Convention is that children should be returned unless the mother can establish the degree of settlement which is more than mere adjustment to surroundings. I find that word should be given its ordinary natural meaning, and that the word ‘settled’ in this context has two constituents. First, it involves a physical element of relating to, being established in, a community and an environment. Secondly, I find that it has an emotional constituent denoting security and stability. ‘and ‘The phrase ‘long-term’ was not defined, but I find that it is the opposite of ‘transient’ it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word ‘new’ is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother, which has always existed in a close, loving attachment. That can only be relevant insofar as it impinges on the new surroundings. Every case must depend on its own peculiar facts . . ‘ As to article 18 and the question of whether the court retained a discretion to order the return of a child found to have been settled here for more than one year (Art 18): ‘The next matter arising is whether art. 12 is applicable to this case, and whether the mother has demonstrated that the two children have settled in their new environment . . If the answer to that question is ‘yes’ then this court has a discretion under art. 18 as to whether or not the children should be ordered to return.’ and ‘in the event of the court being so satisfied, then a discretion arises under art. 18 as to whether or not to order the return of the children.’
Judges:
Bracewell J
Citations:
[1991] 1 FLR 413
Statutes:
Child Abduction and Custody Act 1985 5
Citing:
Cited – M v M FD 8-Oct-1990
. .
Cited – Re S (A Minor) (Abduction) CA 1991
The court considered what would constitute a child being ‘settled’ under the 1985 Act: ‘I now turn to the last matter, which is art. 12, as to whether in these circumstances it has been demonstrated that Katharine in now settled in her new . .
Cited by:
Cited – Cannon v Cannon CA 19-Oct-2004
The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s . .
Cited – Re M (Abduction: Acquiescence) FD 1996
After referring to the decisions in Re S and in Re N on the issue of whether a child had a settled residence: ‘It seems to me that any survey of the degree of settlement of the child must give weight to emotional and psychological settlement, as . .
Cited – Re L (Abduction: Pending Criminal Proceedings) FD 1999
In a child abduction case, the court considered whether a child was settled within the UK if his whereabouts had been hidden: ‘The mother might or might not have demonstrated that the children were now settled in their new environment. The . .
Cited – Re H (Abduction: Child of Sixteen) FD 2000
The court considered the position as to whether a child was to be deemed to be settled after having been within the UK for a period of more than one year: ‘It is the case, looking at the relative dates, that these proceedings were commenced after . .
Approved – Perrin v Perrin IHCS 1994
. .
Cited – Soucie v Soucie 1995
After noting the approval of In re N in Perrin the court added: ‘Furthermore the question of settlement had to be considered in the context of the spirit of the Convention whereby the fundamental duty of the court is to order a return of the child . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 30 April 2022; Ref: scu.219119