Cannon v Cannon

Factual and Procedural Background

This appeal arises from a judgment given by Judge Singer on 28th May 2004 following a three-day hearing commencing on 1st March 2004. The hearing primarily concerned the interpretation and effect of Articles 12 and 18 of the Hague Convention on the Civil Aspects of Child Abduction, incorporated into domestic law by the Child Abduction and Custody Act 1985. Judge Singer granted permission to appeal due to his rejection of previous UK court authority on these articles.

The underlying facts involve an American father and an Irish mother who married in California in 1994 and had a child the same year. The family lived in California until December 1998, when the mother retained the child in Ireland after a holiday. Hague Convention proceedings were initiated in Dublin, resulting in a consent order for the child's return to California in July 1999. The mother failed to appear in court and subsequently wrongfully removed the child again, this time to England, assuming false identities to avoid detection. The child’s whereabouts were concealed from the father for over four years until traced to Liverpool in 2003.

Procedurally, Judge Singer had earlier ruled on the court's power to place the child in Local Authority accommodation as an interim measure. The appeal focuses on the proper construction of the phrase "the child is now settled in its new environment" within Article 12(2) of the Convention and whether a residual discretion exists to order return once settlement is established.

Legal Issues Presented

1. What is the proper construction of the phrase "the child is now settled in its new environment" as used in Article 12(2) of the Hague Convention?
2. Once it is proved that the child is settled in the new environment, does the court retain a residual discretion under the Convention to order the child's return?
3. What impact, if any, does Article 18 have on the above questions?
4. How is the answer to the first question affected if the child's whereabouts have been actively concealed from the left-behind parent since wrongful removal or retention?

Arguments of the Parties

Appellant's Arguments

• Concealment, particularly under false identity, is inconsistent with the concept of settlement in Article 12(2).
• Judge Singer erred in concluding that no residual discretion exists to order return after the child is found settled beyond one year since wrongful removal.
• The discretion to order return is either implied in Article 12(2) or expressly provided by Article 18.
• The judge's conclusions undermine the purpose and objects of the Convention by potentially allowing abducting parents to benefit from wrongful concealment.

Appellee's Arguments

• The judge's reasoning and conclusions on both issues were correct and well-founded.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re S (A Minor) (Abduction) [1991] 2 FLR 1	Establishes that a finding of settlement under Article 12(2) opens the exercise of a judicial discretion under Article 18 rather than an absolute bar to return.	The court adopted this precedent to confirm that settlement does not remove jurisdiction but triggers discretion.
Re N (Minors) (Abduction) [1991] 1 FLR 413	Defines "settled" as requiring both physical and emotional elements, with a degree of permanence and stability.	The court reaffirmed this definition as authoritative in UK law for assessing settlement.
Re M (Abduction: Acquiescence) [1996] 1 FLR 315	Emphasizes the importance of emotional and psychological settlement alongside physical settlement.	Supported the combined approach to settlement adopted by the court.
Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433	Affirms the difficulty of establishing settlement in cases involving concealment and legal jeopardy.	Used to illustrate that time in hiding does not establish settlement.
Re H (Abduction: Child of Sixteen) [2000] 2 FLR 51	Considers concealment's effect on settlement and supports the exercise of discretion under Article 18.	Applied to reject reliance on settlement when concealment and deceit are present.
Perrin v. Perrin [1994] SC45	Scottish court adoption of the Re N test for settlement under Article 12.	Confirmed the applicability of the physical and emotional settlement test in Scotland.
Soucie v Soucie (1995) SLT 414	Emphasizes the court's fundamental duty under the Convention to order return upon wrongful removal and the exercise of discretion under Article 18.	Supported the residual discretion to order return despite settlement.
Mendez-Lynch v. Mendez-Lynch	Application of tolling doctrine to disregard concealment period in calculating the 12-month limit.	Referenced as an example of American approach, though not binding.
Lops v. Lops	Leaves open the question of tolling in concealment cases under the 12-month rule.	Indicates lack of definitive federal appellate authority in the US on tolling.
P v. B (2) (Child Abduction: Delay) [1999] 4 IR 185	Irish case finding settlement despite delay; acknowledges discretion to order return.	Used to illustrate international recognition of residual discretion under the Convention.
Director General, Department of Community Services v. M. and C. and the Child Representative [1998] FLC 92-829	Australian case rejecting the requirement for more than mere adjustment to surroundings for settlement.	Influenced Judge Singer's literal approach but was distinguished from UK authority.
Townsend v. Director-General, Department of Families, Youth and Community [1999] 24 Fam. LR 495	Australian case endorsing a simpler test of settlement without physical and emotional components.	Considered but not adopted as UK law by the court.
State Central Authority v. Ayob [1997] FLC 92-746	Australian decision denying residual discretion to order return after settlement and one year delay.	Noted as a minority view; the court rejected this approach.
Director General of the Community Services v. M and C	Australian Full Court questioning the correctness of Ayob's restrictive view on discretion.	Supported the existence of residual discretion, aligning more with UK authority.
Puttick v. Attorney General [1980] Fam 1	Establishes that a fugitive from justice does not acquire habitual residence merely by time elapsed while evading authorities.	Analogized to settlement in child abduction context to reject settlement based on concealment.
Re A (Abduction: Custody Rights) [1992] Fam 106	Confirms that discretion under Article 18 must be exercised within the Convention's framework.	Supported the court's view on residual discretion and its limits.
Lozinska v. Bielwaski [1998] 56 OTC 59	Canadian case rejecting delay created by a party as a basis for invoking Article 12(2) defense.	Used to illustrate that manipulative delay cannot be used to defeat return orders.
Re C (A Minor) (Abduction) [1989] 1 FLR 403	Establishes that abducting parent cannot rely on their own wrongful conduct to create defenses under the Convention.	Applied to reject defenses based on delay caused by abductor's concealment.

Court's Reasoning and Analysis

The court undertook a detailed and erudite analysis of the meaning of "settled in its new environment" under Article 12(2). It rejected the appellant’s submission that concealment should trigger a tolling of the 12-month period, finding such an approach too crude and potentially undermining the Convention's objectives. The court emphasized that settlement requires both physical and emotional/psychological elements, reflecting the whole child’s experience, and that concealment or subterfuge by the abducting parent increases the burden of proving such settlement.

The court drew parallels with case law on habitual residence, noting that concealment and fugitive status do not confer settled status. It recognized that the longer the abductor persists in deception, the more difficult it becomes for the left-behind parent to secure return, but cautioned against rigid disregard rules, advocating a critical and fact-specific assessment of settlement claims founded on concealment.

Regarding residual discretion, the court held that Article 18 expressly confers a discretion to order return even after settlement is established and more than one year has elapsed. This discretion is exercised within the Convention’s framework, balancing the Convention’s objectives and the child’s welfare, but welfare is not paramount in this context. The court rejected Judge Singer’s literal construction denying residual discretion, finding it contrary to established UK authority and the global judicial consensus.

While the court acknowledged the influence of Australian decisions favoring a narrower construction, it ultimately reaffirmed the well-established UK and common law approach to both issues. The court declined to consider related issues such as the Brussels II regulation, the 1996 Hague Protection Convention, or the Vienna Convention on the Law of Treaties, deeming them insufficiently relevant to the defined issues.

The court also noted that it was constrained from determining the factual question of settlement on this appeal due to limited time for argument and absence of oral evidence, recommending remitting the case to the Family Division for determination by a different judge.

Holding and Implications

The court ALLOWED THE APPEAL on the two principal issues concerning the interpretation of Article 12(2) and the existence of residual discretion under Article 18. The appeal was remitted to the lower court for further proceedings before a judge other than Judge Singer. No order as to costs was made.

The decision reinstates the established legal position in the United Kingdom that:

• The concept of settlement under Article 12(2) requires both physical and emotional/psychological elements and is fact-sensitive, especially where concealment is involved.
• The court retains a residual discretion under Article 18 to order the return of a child even if settled and more than one year has elapsed since wrongful removal.

No new precedent was created; rather, the judgment reaffirmed and upheld the well-recognized construction of the Convention provisions as understood in UK and common law jurisdictions.