A High Court judge has outlined the meaning of “now” and “settled” in parental dispute cases where one parent abducts their own child.

The issue arose in a case involving a Latvian couple. They had married in 2005 and were divorced in 2016.

The children, now aged 14 and 12, remained in the mother’s care following the divorce. She came to England with the children in December 2019.

She claimed that the father had orally agreed to the move. The children began school in England in early 2020.

The father brought proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the return of the children to Latvia.

The mother relied on art.12 and art.13 of the Convention, relating to the children having settled in England.

Article 12 stated that the return should be ordered of a child wrongly removed “unless it is demonstrated that the child is now settled in its new environment”.

The High Court refused the father’s application.

In reaching his decision, Judge Mostyn examined the meaning of “settled” as referred to in the Convention.

Applying the classic definition in the Oxford English Dictionary, the phrase “the child is settled in its new environment” meant that “the child has become established in, or accustomed to, a new home, abode or surroundings”.

There had to be proof of both a physical constituent and a mental constituent. For a younger child the relevant mental state would be that of their primary carer; for an older child, it would be the mental state of the child.

Addressing the meaning of “now” under the Convention, the judge held that it meant “now” as opposed to “then”. Although academic, as the court was satisfied that the children were settled in England when proceedings were commenced in May 2021, “now” meant as at the date of trial.

The physical and mental constituents of the concept of settlement were amply proved. To find otherwise would be perverse. Applying art.7 of the Convention, the children were habitually resident in England; had resided here for more than a year since the father became aware of their whereabouts; no request had been made for their return in that period; and they were now settled here.

The court exercised its discretion against ordering a return to Latvia.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at [email protected] or using the form below.

Case Citations: ES v LS Family Division [2021] EWHC 2758 (Fam) Mostyn J

The contents of this article are general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.