Re B: Court of Appeal clarifies when a child is settled under Hague Convention Article 12

The Court of Appeal has overturned a High Court decision ordering the summary return of a child to Portugal, finding that the trial judge applied too stringent a test when assessing whether the child had become settled in England under Article 12(2) of the Hague Child Abduction Convention 1980.

The case involved B, a Portuguese child who was nearly four years old at the time of the appeal hearing. Her British mother had brought her to England in September 2022 when B was nine months old, initially for an agreed visit. However, the mother subsequently retained B in England, an act the father did not contest as wrongful under the Convention.

The father delayed issuing proceedings for approximately two and a half years, during which time the parties engaged in extensive negotiations and two mediation processes. Throughout this period, the father visited England on 33 occasions and the mother took B back to Portugal on six visits, including one stay of three and a half months. The father only issued his application for B's return in March 2025.

Lord Justice Baker, delivering the leading judgement with which Lord Justice Birss and Lady Justice Asplin agreed, identified several errors in the trial judge's approach. The deputy High Court judge had concluded that B was not settled because the mother had not communicated an "unequivocal intention permanently to reside" in England until recently, and B had not received a "clear and consistent message" that England would be her permanent home.

The Court of Appeal held this test was too stringent. Relying on academic commentary and previous first-instance decisions, Lord Justice Baker confirmed that whilst settlement requires arrangements that are "long-term rather than transient," it does not require proof of permanence. The observation by Bracewell J in Re N (Minors) (Abduction) [1991] that settlement must be "permanent in so far as anything in life can be said to be permanent" went too far.

Crucially, the Court found that B's regular contact with her father and his family in Portugal was part of her "new environment" in England, rather than undermining her settlement here. The fact that the father knew B's whereabouts at all times, visited frequently, and facilitated her movements between countries actually permitted greater settlement, in line with the principle established in Re B (A Child) [2018] that living openly facilitates settlement whilst concealment undermines it.

The Court also rejected the trial judge's view that time spent in mediation and alternative dispute resolution should not strengthen arguments against ordering a return. Lord Justice Baker held this was inconsistent with the Convention's fundamental principle of swift return. The delay of over two years meant this was manifestly not a "hot pursuit" case, and Portugal could no longer be assumed to be the better forum for resolving the dispute.

Additionally, the Court found the trial judge had been wrong to conclude that, even if settlement were established, he would exercise his discretion to order B's return. The welfare assessment required should have been conducted through full proceedings under the Children Act 1989, not through the summary Hague Convention process.

The appeal on grounds relating to Article 13(b) (grave risk of harm) was dismissed, with the Court finding the trial judge had properly applied established principles and was entitled to conclude the father's undertakings provided adequate protection.

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