Re C (Child Abduction: Settlement)
| Jurisdiction | England & Wales |
| Judgment Date | 2006 |
| Date | 2006 |
| Court | Family Division |
Child abduction – Custody – Wrongful removal – Child settled in its new environment – Whether court should order return of child to United States of America – Hague Convention on the Civil Aspects of Child Abduction, art 12.
The parents of a 14-year old child were both citizens of the United States of America. The parties separated in 1998 after a turbulent marriage. Upon divorce, the Michigan court awarded sole physical and legal custody of the child to the mother with visitation and contact rights to the father. In 2000 the mother remarried and flew to England where her new husband lived, taking the child with her. In 2001 the Michigan court granted the father temporary sole legal and physical custody of the child and ordered the mother immediately to hand over the child to the father. All contact was lost between the parties until the father located the mother and the child in England in February 2006. The father brought proceedings under the Hague Convention on the Civil Aspects of Child Abduction seeking the return of the child. The mother defended the proceedings on the grounds, inter alia, that the child had become settled in her new environment in the United Kingdom over the last five years within the meaning of art 12 of the Convention and that the court could and should exercise its discretion not to return the child summarily to the United States. It was conceded that the evidence adduced by the father established a wrongful removal because the mother was in breach of an order that the child should not be removed from the state of Florida without the approval of the judge who had awarded custody.
Held – The word ‘settled’ had two constituents. The first was more than mere adjustment to new surroundings; it involved a physical element of relating to, being established in, a community, and an environment. The second was an emotional and psychological constituent denoting security and stability. It had to be shown that the present situation imported stability when looking into the future. In determining the issue of settlement, as well as the exercise of the court’s discretion if settlement was established, the reason for the delay in bringing the proceedings and the parties’ conduct, particularly where the abducting parent had concealed the whereabouts of the child, were relevant. In the instant case, on the evidence, settlement within the meaning of art 12 was established. In the exercise of its discretion, the court would decline to make an order for the return of the child to the United States of America. However it would suspend the operation and effect of the order for dismissal for 14 days. Accordingly, the application would be dismissed.
Cases referred to in judgmentsC (abduction: settlement) (No 2), Re [2005] 1 FLR 938.
Cannon v Cannon[2004] EWCA Civ 1330, [2004] 3 FCR 438, [2005] 1 WLR 32, [2005] 1 FLR 169, CA.
H (child abduction: right’s of custody), Re[2000] 1 FCR 225, [2000] 2 All ER 1, [2000] 2 AC 291, [2000] 2 WLR 337, [2000] 1 FLR 374, HL.
H (abduction: child of sixteen), Re[2000] 3 FCR 404, [2000] 2 FLR 51.
L (abduction: pending criminal proceedings), Re[1999] 2 FCR 604, [1999] 1 FLR 433.
N (minors) (abduction), Re [1991] FCR 765, [1991] 1 FLR 413.
R (child abduction: acquiescence), Re[1995] 2 FCR 609, [1995] 1 FLR 716, CA.
S (a minor) (abduction), Re [1991] FCR 656, [1991] 2 FLR 1, CA.
N (minors) (abduction), Re [1991] FCR 765, [1991] 1 FLR 413.
Z v Z (abduction: children’s views) [2005] EWCA Civ 1012, [2006] 1 FCR 387, [2006] 1 FLR 410, CA.
ApplicationThe father brought proceedings under the Hague Convention on the Civil Aspects of Child Abduction seeking the return of the child from England to the United State of America. The child lived in England with the mother. The facts are set out in the judgment.
Marcus Scott-Manderson (instructed by Reynolds Porter Chamberlain) for the plaintiff.
Catriona Murfitt (instructed by Frank Allen Pennington) for the defendant.
Sir Mark Potter P. Introduction[1] These proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (as set out in Sch 1 to the Child Abduction and Custody Act 1985) concern a young girl (whom I shall call A) who was born on 11 May 1992 and is now just 14. Her father who brings the proceedings and her mother, with whom she is living in this country, are both citizens of the United States of America.
[2] There is an issue as to when and in what circumstances A and her mother came to England, to which I shall shortly turn. However, it was either just over or somewhat under five years ago. They have been living here at an address unknown to the father who discovered their whereabouts by finding on the internet a report relating to bullying at school in which A was cited as an example, having been the victim of a violent ‘happy slapping’ incident which received substantial publicity.
[3] The parties were married in 1991 in Jacksonville, Florida. They had both been married twice before. The mother had a young daughter by a previous marriage, R, who was adopted by the father shortly before the birth
of A. A was born in Jacksonville and is herself an American citizen. The father has now remarried and has three young children of his present marriage (two children of his new wife by her former marriage and a child of his by another relationship).
[4] The parties last lived together in Michigan and separated in 1998 after a turbulent marriage. It seems clear that the father frequently used violence towards the wife. Prior to their divorce in May 1999, in the course of individual counselling sessions following reference by the court to its Family Counselling and Mediation Division, R complained of sexual abuse by the father over a period of some four years, as well as persistent use of violence against her. Upon divorce, the Michigan Court awarded sole physical and legal custody of A and R to the mother, providing for supervised parenting time on the part of the father in Florida where the mother was now living with the maternal grandmother. Following investigation of R’s complaint, the police decided not to pursue charges and the Michigan Court removed the requirement for supervision of the father’s contact. At a hearing which the mother did not attend, an order was made giving the father general visitation rights in Florida and unsupervised contact during the children’s school vacations.
[5] The mother did not comply with the contact order which was confirmed at a hearing which she attended on 7 October 2000. In November 2000, the mother married again. She asserts, and I accept, that she and A left Florida and flew to England on 14 December 2000 where her new husband lived. She accepts that this was done without the knowledge or consent of the father or the approval of the court and that, at the time, there was a dispute over the father’s contact.
[6] On 17 January 2001, at a time when the father did not know her whereabouts, he secured the issue of a bench warrant from the Michigan Court for the arrest of the mother for her failure to comply with the contact orders and, in March 2001, he applied for custody of A.
[7] On 4 October 2001 the Michigan Court granted the father temporary sole legal and physical custody of A (then aged nine) until the age of 18 or until further order and ordered the mother immediately to hand over A to the father.
[8] The mother asserts that she was unaware of this order, having received no notice of it, and being at an undisclosed address in England.
[9] The father on the other hand asserts that she was aware of the order and that she had in fact remained in the United States and that when he went to collect A pursuant to the terms of the 4 October 2001 order, he acceded to the mother’s request for a final contact session with A. However, she failed to return A to his care and only disappeared at that point.
[10] It is not in dispute that, thereafter at least, all contact was lost between the parties until the father located the mother and A in a town in the north of England in February 2006, by means of the internet as already described.
[11] The originating summons herein was issued on 13 March 2006. On 24 March 2006, by order of Munby J, directions were given, including an order for the instruction of a CAFCASS Officer to interview A following the filing
of the parents’ evidence. Provision was made for the mother to allow A to have reasonable interim contact with the father by e-mail and telephone. That has occurred to date.
[12] In her statement of defence dated 30 March 2006, the mother defends the proceedings on grounds that:
(1) She denies removing A in breach of the sole custody rights asserted by the father, pointing out that the orders upon which he seeks to rely were made after she had removed A to the United Kingdom. She asserts that, at the time of that removal, sole physical legal custody, control and maintenance of A were vested in her pursuant to the Michigan Court order of 6 May 1999. She reserves her position as to whether the removal of A was wrongful within the meaning of art 3 of the 1980 Convention.
(2) She asserts that A has become settled in her new environment in the United Kingdom over the last five years within the meaning of art 12 of the 1980 Convention and that the court can and should exercise its discretion not to return A summarily to the United States, whether under the 1980 Convention or its inherent jurisdiction.
(3) She relies on art 13 of the 1980 Convention and asserts that the court should exercise its discretion not to return A because such return would expose A to physical or psychological harm or otherwise place her in an intolerable situation.
(4) She relies upon A’s objections to returning to the United States asserting that, at the age of 14, A has attained an age and maturity where it is appropriate to take account of her views.
[13] I propose to deal with those defences in the order in which they have been raised.
...To continue reading
Request your trial
-
AH v CD
...the principal amongst which are (a) Re N (Minors) (Abduction) [1991] 1 FLR 413, (b) Cannon v Cannon [2005] 1 FLR 169; (c) C v C [2006] 2 FLR 797; (d) Re M (Zimbabwe) [2008] 1 FLR 251. A recent example of the application of the principles is Re T (A Child — Hague Convention proceedings) ......
-
M and another (Children) (Abduction: Rights of Custody) Re
......I add these brief comments simply to explain why I agree with her that, where it has been demonstrated that the child is settled in its new environment, article 12 nevertheless implies that there is a discretion to return the child within the procedures of the ... Baroness Hale has fully rehearsed the relevant arguments, which are very largely those which appealed to Singer J in Re C (Abduction: Settlement) [2005] 1 FLR 127 . Happily, for the reasons which she gives, it may not make very much difference in practice whether the discretion is exercised ......
-
Re M (Children) (Abduction)
...Accordingly, the appeal would be dismissed. Cases referred to in judgmentC (a child) (abduction: settlement), Re[2006] EWHC 1229 (Fam), [2007] 1 FCR 649, [2006] 2 FLR C (abduction: settlement) (No 2), Re [2005] 1 FLR 938. Cannon v Cannon[2004] EWCA Civ 1330, [2004] 3 FCR 438, [2005] 1 WLR 3......
-
RA v RQ
...to the asserted delay." The court must "look critically at any alleged settlement that is built on concealment and deceit" (see Re C (Child Abduction: Settlement) [2006] 2 FLR 797 at para.47). An abducting parent should not be able to rely on his or her success in hiding the whereabouts of ......