Child abduction

Cannon v Cannon CA TLR 28 October

In July 1999 S was wrongfully removed by her mother from the US to England in breach of the father’s rights of custody S’s whereabouts were deliberately concealed from the father until October 2003. That concealment involved assuming new identities for both the mother and S. On discovering that S was in England, the father instituted proceedings under the Hague Convention. Article 12 of the Convention, appended to the Child Abduction and Custody Act 1985, provides that where the child has been within the contracting state for a period of less than one year from the date of the wrongful removal, the authority concerned shall order the return of the child forthwith. Where the period exceeds one year, the court shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. In considering whether a child was settled in its new environment, it was not enough to have regard only to the physical characteristics of settlement. Equal regard had to be paid to the emotional and psychological elements. In cases of concealment and subterfuge, the burden of demonstrating the necessary elements of emotional and psychological settlement was much increased. Judges should not apply a rigid rule of discretion to order a return under article 18 of the Convention.