Settlement of the Child – Art. 12(2)
It was argued for the mother that the 12 month time limit prescribed in Article 12 should only be regarded as having commenced from the time the children were discovered, consequently Article 12(2) and the issue of settlement would have no application. In this reliance was put on the doctrine of equitable tolling as applied by certain United States courts. Reviewing the text of the Convention and various case law the trial judge rejected this proposition. He acknowledged that the children had been the victims of deliberate concealment by the father but ruled that this concealment had not suspended the passing of time under Article 12(1). In this context he noted that the Convention’s hot pursuit remedy could not apply indefinitely and that a point of transition could be reached where the objective of prompt return would lose its rationale and a return order, notwithstanding any moral culpability on the part of the abductor, would risk being fundamentally disruptive to the child concerned. Turning to the interpretation to be given to the concept of settlement, the trial judge held that he favoured a literal construction as favoured in recent Australian case law over the more strict approach adopted by English courts. He clarified however that he did not regard the burden of proof to be a token one. Applying this interpretation to the facts of the case the trial judge had become settled in Hong Kong during the 16 months they had spent there. In this he noted that there was no suggestion that they had been forced to lead a covert life style. The trial judge then considered whether as a consequence he had a discretion whether or not to make a return order. He concluded that no such discretion existed but held that if one did he would have exercised it not to make a return order.
