Anonymised Summary of the Court of Appeal Opinion (Judge Baker presiding)

Factual and Procedural Background

This appeal concerns an application under the Hague Child Abduction Convention 1980 (as incorporated by the Child Abduction and Custody Act 1980) arising from the retention of a child by the child's mother in a State other than the child's habitual residence. The principal legal focus was the interpretation and application of Article 12 (the "settlement" defence) and Article 13(b) (grave risk/intolerability) of the Convention.

Summary of the key factual matrix, as set out in the opinion:

• The Child was born on 18 December 2021 in the country of habitual residence (Portugal). At that time the parents were living in that State.
• In September 2022, the Appellant (mother) brought the Child to this country to visit family and, although an initial plan was for a short stay, the Appellant retained the Child here from October 2022 onwards. It was not disputed that the Child's retention was wrongful under Article 3 of the Convention.
• Between the date of retention and the start of proceedings, the Appellant and the Child lived in rented accommodation in this country; the Child attended nursery and had contact with maternal family and with the left-behind parent.
• The parties engaged in extensive discussions and mediation over a period of time. The Appellee (father) did not commence Hague return proceedings until 13 March 2025 (about two and a half years after the wrongful retention began).
• The Appellant applied in the local family court under section 8 of the Children Act 1989 seeking a child arrangements order; those proceedings were stayed pending the Hague claim. A Cafcass High Court team report and expert reports (an immigration-law expert and a psychologist) were prepared for the Hague hearing.
• At first instance the trial judge ordered the Child's summary return to Portugal and annexed undertakings from the Appellee as protective measures. The Appellant's application for permission to appeal to the Court of Appeal was initially refused but permission to appeal was later granted by this Court and the return order was stayed pending appeal.
• On appeal, the Court of Appeal (Judge Baker, with Judges Birss and Asplin agreeing) considered (i) whether the Child was "settled" in the new environment within Article 12(2), (ii) whether Article 13(b) applied (grave risk), and (iii) whether, even if a defence were established, the judge below was correct to have exercised his discretion to order return.

Legal Issues Presented

1. How should Article 12(2) of the Hague Convention (the "settlement" defence) be interpreted and applied — specifically, what degree and type of settlement must be demonstrated for the defence to succeed (physical, emotional/psychological, permanence/long-term nature, the relevance of parental intention and concealment, and the appropriate assessment date)?
2. Whether the judge below misapplied Article 12 principles in concluding that the Child was not settled in the new environment as at the commencement of proceedings.
3. Whether, even if settlement were established, the judge was entitled to exercise his discretion under the Convention to order the Child's return.
4. Whether the Article 13(b) threshold (grave risk of physical or psychological harm or placing the Child in an intolerable situation) was crossed on the evidence, including the cumulative effect of the Appellant's allegations (domestic/coercive behaviour, immigration difficulties, housing and mental health) and whether proposed undertakings were effective measures to mitigate any risk.

Arguments of the Parties

Appellant's Arguments (as presented by Attorney Guha)

• The judge below applied an unduly technical and over-stringent test for settlement under Article 12(2), placing excessive weight on the Appellant's communications with the Appellee and her shifting intentions rather than on the substantial factual material demonstrating the Child's life and integration in this country.
• The Child had lived in this country since September 2022, had a stable home for over two years, was registered with health services, attended nursery, had friends and extra-curricular activities, and had regular supportive contact with maternal family — all indicating physical and psychological settlement.
• The regular and frequent contact between the Child and the Appellee (including multiple visits by the Appellee and the Child's trips to Portugal) assisted rather than undermined settlement; the judge erred in treating those visits as evidence of non-settlement.
• If settlement were found, the judge should not have exercised the discretion to order return: the Child would suffer welfare harm from uprooting, and the Appellant faced significant immigration uncertainty and other obstacles in Portugal which would negatively affect the Child's care; the exercise of the discretion should focus on the Child's welfare.
• The judge mischaracterised and under-weighted expert evidence on immigration and psychological impact, and took an inappropriate approach to undertakings (including failing to require enforceability in Portugal or provision of independent accommodation by the Appellee pending immigration regularisation).

Appellee's Arguments (as presented by Attorney Gupta)

• The trial judge applied the correct legal principles and performed a detailed evaluation of the evidence; the factual conclusion that the Child was not settled was open to him and should not be disturbed on appeal absent a clear error.
• Parental intention and the context of the Child's young age (deriving emotional settlement largely from the primary carer) were relevant and made the Appellant's prior lack of settled intention an important factor.
• Even if the Child were found to be settled, the judge was entitled to exercise his discretion to order return given the unusual features of the case: the Appellee had sought return promptly (albeit by non-court routes initially), the parties had a history of cooperating on arrangements, the Appellee had a home for the Child in Portugal, and it was likely infeasible for the Appellee to continue the frequency of travel he had maintained indefinitely.
• The judge properly assessed Article 13(b) and the proposed undertakings: they were adequate safeguards and, as measures within the scope of the 1996 Hague Convention, were recognisable for enforcement purposes in Portugal.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Baker conducted a detailed analytical review of the trial judge's findings and the relevant case law. The analysis proceeded in several stages, each applying principles extracted from the Convention, the Explanatory Report and the authorities cited above.

1. Interpretation of Article 12(2) and the correct legal test:

   Judge Baker accepted the established approach that settlement is a holistic inquiry involving both physical and emotional/psychological components (citing Re N, Re B and related authorities). He endorsed the notion that settlement requires a long-term rather than transient integration into the new environment. However, he expressly rejected a requirement that the abducting parent must demonstrate permanence (i.e., that the arrangements are "permanent" in an absolute sense). That stricter formulation (attributed to some earlier language in Re N) was characterised as "going too far" and inconsistent with more recent first-instance authorities which had found settlement despite immigration uncertainty.

2. Application to the facts: whether the Child was settled by the commencement of proceedings

   Judge Baker examined the factual findings of the Cafcass report, witness statements, expert evidence and communications between the parties. The trial judge had emphasised parental communications, the Appellant's historical statements of intention to return to Portugal, and the existence of properties and ties in Portugal, concluding the Child was not settled. Baker disagreed.

   Key points in Baker's factual analysis (as applied strictly from the material in the opinion):

   • The Child had spent the majority of the period between retention and proceedings living in this country, had a home here, had begun nursery and other activities, had established family support networks and friendships, and had regular and open contact with the left-behind parent.
   • The regular visits to Portugal by the Child and the Appellee's numerous visits to this country were part of the Child's "new environment" and did not, of themselves, undermine settlement; indeed, they were factors that assisted a finding of integration.
   • While the Appellant had at times communicated an intention to return (and had entered into an agreement in October 2024 to return), by the date the Hague proceedings were commenced (March 2025) the Appellant had formed a clear intention to live in this country, and the Child had established a long-term (not transient) integration.
   • The Child's young age was relevant: emotional settlement would be derived largely from the primary carer. Nonetheless, on the evidence (including the Cafcass observations about the Child's calm demeanour at handovers and enjoyment of time with both parents), the Judge concluded the Child had become settled.

   Accordingly, Baker concluded the trial judge's finding that the Child was not settled at the commencement of proceedings was wrong and that the Child was settled for the purposes of Article 12(2).

3. Exercise of discretion under Article 12 (even if settlement established)

   Baker addressed the trial judge's alternative decision that, even had settlement been established, he would nevertheless have exercised his discretion to order return. Baker identified several errors in that reasoning:

   • The judge below had given too little weight to the Convention's object of securing a swift return and had misstated the relevance of delay caused by participation in mediation and non-court dispute resolution. Baker held that significant delay is relevant to the exercise of the discretion and that the reasons for delay (including whether the left-behind parent pursued non-court resolution) are pertinent — contrary to the trial judge's assertion that participation in mediation should not strengthen arguments against exercising the discretion.
   • The decision to exercise the discretion without a full welfare inquiry was criticised. Baker emphasised that, where the summary return assumed by the Convention is no longer possible because of delay and settlement, welfare considerations gain greater importance and a fuller welfare analysis may be required before ordering return.
   • Baker further found the trial judge had been unduly dismissive of the Appellant's immigration uncertainties and of the cumulative and potentially negative effects on the Appellant's wellbeing and, by extension, on the Child's welfare during any protracted immigration regularisation process in Portugal.

   On that basis, Baker concluded the trial judge's exercise of the discretion to order return (even if settlement had been established) was wrong.

4. Article 13(b) (grave risk) and protective undertakings

   Baker reviewed the trial judge's analysis of Article 13(b), noting the trial judge had applied the accepted structured approach (as summarised in Re IG and E v D) — namely, assess whether, if the Appellant's allegations were true, they would establish a grave risk, and if so whether protective measures could be identified to mitigate that risk.

   On the evidence before the Court of Appeal, including the trial judge's evaluation of allegations (domestic/coercive behaviour, immigration, housing and mental health), the trial judge concluded that the allegations, taken individually and cumulatively, did not meet the high Article 13(b) threshold. Baker did not find this conclusion was one on which appellate interference was warranted: he accepted that the trial judge carefully applied the correct legal principles and reached a conclusion open to him.

   Regarding undertakings, Baker noted the trial judge treated the proposed measures as recognisable pursuant to Article 23 of the 1996 Hague Convention and as sufficient in the circumstances; Baker accepted the trial judge's conclusion that the undertakings were sufficient and recognisable, and that it was not necessary for them to be mirrored in a Portuguese court order prior to return. However, because Baker allowed the appeal on Article 12 grounds, the practical consequences of that acceptance were not determinative of the appeal outcome.

Holding and Implications

Holding: The Court of Appeal allowed the Appellant's appeal on the grounds concerning Article 12(2) and the judge's exercise of discretion (grounds 1 and 2 as presented to the Court). It concluded that the trial judge was wrong to find that the Child was not settled in the new environment as at the commencement of proceedings, and was also wrong to conclude that he would nevertheless have exercised his discretion to order summary return. The appeal on the Article 13(b) grounds (grounds 4 and 5) was rejected: the trial judge's analysis of Article 13(b) and acceptance of undertakings was held to be within the permissible range of conclusions.

Implications:

• The direct consequence is that the Court of Appeal set aside the trial judge's order for the Child's summary return to the country of habitual residence. The decision quashes the operative return order made below.
• On principle, the opinion emphasises (i) that Article 12(2) requires a holistic assessment of settlement focused on the Child and that "long-term" integration suffices (there is no absolute requirement of permanence), and (ii) that appellate courts should be cautious about interfering with trial judges' factual evaluations but will do so where a judge has applied an overly strict or incorrect legal test or where the exercise of discretion was flawed in principle.
• The Court reiterated that Article 13(b) sets a high threshold and that undertakings, where effective and recognisable under the relevant Hague provisions, may appropriately be treated as protective measures — but that careful scrutiny of their likely effectiveness and enforceability is required in each case.
• Nothing in this opinion purports to create new binding precedent beyond the application and clarification of existing authorities; the Court applied and reconciled earlier case-law authorities and the explanatory report in reaching its conclusions in this particular factual context.

Disposition

The appeal was allowed on grounds relating to Article 12 and the exercise of discretion; the trial judge's order for summary return was set aside. Judges Birss and Asplin agreed with the leading judgment by Judge Baker.

Notes on Sources and Limitations

This summary is confined to and derived exclusively from the material contained in the provided opinion. No information has been added beyond what is contained in that opinion. All personal names and other potentially identifying details have been anonymised and replaced by generic placeholders in accordance with the instructions given.