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 environment. Mr Karsten submitted that the President made no finding on this matter. I have read the relevant passages from his judgment. It is perfectly clear that he considered art. 12 at some length, and that he considered the submissions of counsel and, as I have said, before he started the hearing had been fully acquainted with the documents and the history. The countervailing submissions as to whether Katharine could really be said to be settled in this environment, looking at the historical record of the mother and the numerous movements and schools and so on, must be a matter of considerable debate. For my part, I would not disturb the approach that the President has made on this aspect of the case. He made a specific finding on the matter. The purpose of art. 12 is to give relief where the period which has passed between the wrongful removal and the application is more than one year. If in those circumstances it is demonstrated that the child is settled, there is no longer an obligation to return the child forthwith but, subject to the overall discretion of art. 18, the court may or may not order such a return. Bearing in mind the many moves to which our attention is drawn by Miss Scotland, for my part, I would not consider that it had been demonstrated that Katharine was settled in the new environment. There was from April 1989, and certainly August 1989, a dispute going on with which she must have been concerned about her future and where she was to live. She had established, it is obvious, a relationship with her half-sister, who had come through many of the other vicissitudes with her. But to say that within art. 12 it is demonstrated that there was a long-term settled position in the environment in England is, in my view, a difficult question upon which to be satisfied. Sir Stephen Brown P was not satisfied. I, for my part, would not disturb his decision on that matter. In any event, in all the circumstances of the case, Sir Stephen Brown P exercised his discretion within art. 18, and observed the underlying comity of this Convention in supporting, rather than interfering with, a foreign court properly seized with the management and control of the welfare of Katharine who had been under its jurisdiction as a result of divorce proceedings which took place in that court.’
Judges:
Lady Justice Butler-Sloss, Citations: [1991] 2 FLR 1
Statutes:
Child Abduction and Custody Act 1985 12
Jurisdiction:
England and Wales
Cited by:
Cited – Re N (Minors) (Abduction) FD 2-Jan-1991
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 06 May 2022; Ref: scu.219118
