Settlement of the Child – Art. 12(2)
Over 4 years had elapsed between the removal of the child and the commencement of return proceedings. During this time the child had been successfully concealed by her mother. The child had assumed the name and date of birth of a child who had died. The issue before the court was whether the child had now settled in her new environment. In a very detailed judgment the Court considered the operation of Article 12(2), its place within the Convention and its inter-relationship with Article 18. The Court also examined what impact the deliberate concealment of a child had on the operation of Article 12(2). The Court concluded that: • where it is established that a child is settled in its new environment then there is no discretion for a return order to be made, indeed the application falls from the Convention’s ambit entirely. • Article 18 creates no residual jurisdiction to make a return order under the Convention. Its purpose and effect is to make it clear that the Convention in no way limits or precludes the receiving country from making a return order under its own domestic laws. • the deliberate concealment of a child does not stop the clock running for the purposes of Article 12, however, concealment may be of great relevance when a court considers whether settlement is demonstrated. In reaching these conclusions the Court considered but rejected the practice known as ‘equitable tolling’ which some US courts had applied in Convention cases. In applying this doctrine courts would deduct time spent in hiding from the computation, for the purposes of Article 12(1), of the time elapsed between the wrongful removal and the commencement of proceedings before the judicial or administrative authorities of the Contracting State where the child is. Singer J further considered the debate as to whether in assessing a child’s settlement regard should be paid to future events. He held 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.” He summed up his apprach to Article 12(2) as follows: “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.” Singer J concluded that in the instant case the child was settled in her new environment.
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