N v N (Art 12 Settlement)

EN (hereafter “the father”) applies under the Child Abduction and Custody Act 1984 for a return order under the 1980 Hague Convention in respect of TN, born in September 2021 and now aged 4 years old. The application is resisted by RN (hereafter “the mother”). The father is represented by Mr Alan Payne of King’s Counsel and Ms Charlotte Baker of counsel (Mr Payne dealt with the issues concerning asylum and Ms Baker dealt with the issues under the 1980 Hague Convention). The mother is represented by Mr Michael Gration of King’s Counsel and Mr Harry Langford of Counsel. Given the issues raised in this case, TN was joined as a party to the proceedings and is represented by Ms Alison Moore of counsel through his Children’s Guardian, Ms Odze.

With respect to the criteria for the making of a return order under the 1980 Hague Convention, the mother accepts the following matters:

In the foregoing circumstances, the issues the court is required to determine under the 1980 Hague Convention centre on those exceptions to the making of a return order that are relied on by the mother. Namely:

In circumstances where the mother and TN each have outstanding appeals against the refusal of their asylum claims by the Secretary of State for the Home Department (hereafter “the SSHD”), this court also heard extensive and erudite submissions from leading and junior counsel on the current state of the law concerning the implementation of return orders under the 1980 Hague Convention in circumstances where the person who is the subject of the return order has been granted asylum, or has an application or appeal pending in respect of asylum, including the continuing relevance, or otherwise, of the decision of the Supreme Court in the case of G v G (A Child) [2021] UKSC 9, [2022] AC 544 (in which the Supreme Court held that a child named as a dependant on his or her parent's asylum claim, who could objectively be understood to have made a request for international protection, had protection from refoulement pending the determination of that application such that a return order in proceedings under the 1980 Hague Convention could not be implemented). However, the question of whether a court can make and implement an order for return notwithstanding the principles established by the Supreme Court in G v G (A Child) only arises in this case if the court makes an order for return. For the reasons I shall come to, I am satisfied that in this case that a return order should not be made, in circumstances where I find that the Art 12 settlement exception and the Art 13(b) harm exception are made out in this case.

In light of my decision on the substantive application there is, accordingly, no need to decide that issue in the present case, and considerable disadvantages to doing so. Any views expressed by this court on a significant and contentious issue with the potential to impact on a significant number of cases would be obiter dicta only, and obiter dicta in the context of a case raising potentially complex issues under the doctrine of stare decisis and the question of whether certain of the principles articulated in G v G (A Child) can only properly be departed from by the Supreme Court, having regard to the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. The court would also be proceeding without hearing from the SSHD, who does not intervene in these proceedings. I mean no disrespect to the evident industry of leading and junior counsel in not dealing in this case with their comprehensive submissions on this issue.

In determining the mother’s application, I have had the benefit of a court bundle (which includes the statements of the parents, the mother’s answer, an expert report from Dr Van Velsen, the psychiatrist jointly instructed to assess the mother in this case, a report from Ms Odze and the parties’ Skeleton Arguments with respect to the issues under the 1980 Hague Convention and the issues in respect of asylum), a bundle of documents from proceedings with respect to TN in Albania and an agreed bundle of authorities. The court also heard oral evidence from the Children’s Guardian, Ms Odze, and Dr Van Velsen. In light of the issues raised in this case I reserved judgment and now set out my decision and my reasons for it.

The mother was born in the Republic of Albania (hereafter “Albania”) in 1995 and is an Albanian national. The father was born in Albania in 1988 and is also an Albanian national. The parties commenced their relationship in 2017 and married on 25 October 2018 in Albania. The mother gave birth to TN on 30 September 2021. TN’s name is formed of a combination of the parents’ names. TN is also an Albanian national.

The parents separated in May or June 2022. The mother alleges she was the victim of domestic abuse during the marriage and following separation. I particularise the allegations below when dealing with the Art 13(b) exception. Within the context of her allegations, on 29 October 2022, the mother filed a complaint in Albania against the father. This complaint had the effect of initiating two separate legal procedures simultaneously. First, a procedure for issuance of an ‘Immediate Protection Order’ in respect of the mother. Second, a procedure for the initiation of criminal proceedings for domestic violence against the father. On 31 October 2022, the court in Tirana rejected the request for the immediate protection order as unfounded in law and evidence. The mother appealed, and on 7 February 2023 the Court of Appeal upheld the lower court’s decision. On 21 November 2022, the Albanian Prosecutor’s office exercised its discretion to refuse to initiate criminal proceedings against the father.

The mother subsequently removed TN from the jurisdiction of Alania to the jurisdiction of England and Wales on 31 July 2023. She informed the father on 8 August 2023 that she had done so. The parties agree that the removal by the mother of TN from the jurisdiction of Albania was without the father’s knowledge or consent.

Following her arrival in England on 31 July 2023, the mother (and TN, as her dependent) immediately claimed asylum. The mother relied on allegations of domestic abuse against the father and what she contended was the lack of protection afforded to her by the authorities in Albania. The mother has resided in England with TN since 31 July 2023. The father remains in Albania. The parties’ divorce was finalised on 3 June 2024. The final order from the Albanian court directed that the child live with the mother and spend time with the father. That order remains in force.

With respect to these proceedings, the father lodged his request with the Albanian Central Authority (the Albanian Ministry of Justice) for the return of TN to Albania on 13 October 2023. The father contends that, thereafter, he encountered significant issues in his dealings with the Albanian Central Authority, which he asserts delayed his application for summary return of TN in a manner relevant to the question of settlement. The father finally issued his application for a return order on 5 June 2025.

On 14 April 2025, the mother’s and TN’s claims for asylum were refused and certified by the Secretary of State for the SSHD as “clearly unfounded” pursuant to section 94 of the Nationality, Immigration and Asylum Act 2002 (hereafter “the 2002 Act”). No right of appeal lies in relation to such a decision but the mother requested a reconsideration by the SSHD. Following that reconsideration, on 18 June 2025 the claims were again refused on the same basis. Thereafter the mother issued judicial review proceedings. In mid-October 2025 the SSHD agreed to withdraw her previous asylum certification and to reconsider the mother’s asylum claim.

As at the date of the final hearing in these proceedings, it was believed that the SSHD had yet to reconsider the asylum claims of the mother and TN. However, subsequent to the hearing it transpired that those claims were reconsidered and refused by the SSHD on 14 November 2025. It would appear that the decision letters were sent by email to the mother’s former immigration solicitors and were only located in the ‘Junk’ folder on their email system on 10 December 2025.

The decisions letters of 14 November 2025 with respect to the Family Asylum Claims process for the mother and TN state the basis for refusal as being, with respect to refugee status, that the mother had not established to a reasonable degree of likelihood that she will have a well-founded fear of persecution for a Convention reason and be unable or, owing to such fear, unwilling to avail herself of the protection of Albania; with respect to humanitarian protection, that the mother had not shown substantial grounds for believing that she faces a real risk of suffering serious harm and will be unable or, owing to such risk, unwilling to avail herself of the protection of Albania; and, with respect to Art 8 of the ECHR, that the SSHD was not satisfied that removing, or requiring the mother to leave, the United Kingdom would be contrary to the Human Rights Act 1998.

The mother’s present solicitors lodged an appeal against the decisions of the SSHD on 14 November 2025. The appeal on behalf of the mother was lodged on 11 December 2025, and the appeal on behalf of TN was lodged on 12 December 2025. Both applications were accompanied by an application for permission to appeal out of time. Those appeals remain pending and there is no indication as to the timescales for their determination.

The mother relies on the settlement exception under Art 12 of the 1980 Hague Convention. Art 12 provides as follows:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

As Williams J noted in In Re B (A Child)(Custody Rights: Breach) [2018] EWHC 1643 at [41]:

“The underlying purpose of the exception is to enable the court in furtherance of the welfare of the child to decline a summary return because imposing a summary return (i.e. without a more detailed consideration of welfare) might compound the harm caused by the original abduction by uprooting a child summarily from his by now familiar environment.”

The rationale for the settlement exception contained in Art 12 of the 1980 Hague Convention was further elucidated by the Court of Appeal in Re B [2025] EWCA Civ 1382, [2025 4 WLR 125 Baker LJ (with whom Asplin and Birss LJJ agreed and in which the observations of Williams J in In Re B (A Child)(Custody Rights: Breach) were endorsed) stating at [65] that:

“65.

The first object of the Convention in Article 1(a) is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. In such circumstances, the Convention authorises the courts of signatory States to order the child's summary return without carrying out a full investigation of the child's welfare interests. It is important to note that this is not an exception to the principle that the child's welfare is the paramount consideration in making decisions about her future care. On the contrary, as Professor Perez-Vera identified in the Explanatory Report, the objects of the Convention in Article 1 "correspond to a specific idea of what constitutes the 'best interests of a child'", which, as the Preamble demonstrates, the signatory States recognised as being of paramount importance. In those circumstances, the summary return of a child who has been wrongfully removed or retained is consistent with her welfare unless the abducting parent establishes one or more of the defences under the Convention and the court in the requested State concludes that the child should not be returned. But where the child has not been returned promptly within a year of the abduction, and has settled in a new environment, the scope for the court to order her summary return without a full examination of her best interests will be extremely limited. That is entirely consistent with the policy of the Convention as reflected in its Preamble and substantive provisions.”

In deciding whether the subject child is “now settled in its new environment”, the court should adopt a broad and purposive construction of those words in order to properly account for the facts in each case (see Cannon v Cannon [2004] EWCA Civ 1330; [2005] 1 WLR 32 at [53]). The concept of “settlement” for the purposes of Art 12 has been held to involve three elements. Namely, physical settlement, emotional settlement and psychological settlement (see Cannon v Cannon at [57]) and to encompass place, home, school, people, friends, activities and opportunities but not, per se, the relationship with the taking parent (see Re N (Minors) (Abduction) [1991] 1FLR 413 per Bracewell J at 417). However, in applying these principles, it is also important that the court avoids an unduly technical approach to the question of settlement.

In ReG and B (Children) (Abduction: Settlement: Grave Risk: Ukraine) [2025] EWHC 795 (Fam), Harrison J held that the court should consider the question of whether “settlement” has been demonstrated in the round, rather than on the basis of a “quasi-statutory test whereby each limb has separately to be satisfied before the Article 12 exception can be established.” In this context, Harrison J observed as follows at [50]:

“In common with Williams J in AH v CD [2018] EWHC 1643 and Robert Peel QC (as he then was) in AX v CY (Article 12 Settlement) [2020] 2 FLR 1257, I consider that the question of settlement should be considered 'holistically', not in stages. The court must take into account all of the relevant circumstances bearing in mind that within the confines of a summary process the picture is likely to be incomplete. Information about the child's circumstances prior to an abduction can be relevant to the issue. The court's primary focus is on the question of whether settlement has been achieved 'in a new environment' as opposed to with the abducting parent. Concealment and deceit are highly relevant to the issue, but not determinative. The severance of a pre-existing parental relationship is also very relevant, but again not determinative (as demonstrated, for example, by Black J's decision in F v M and N). The court must consider whether the child has become established in a new environment on a permanent or long-term, as opposed to transient, basis: Re N.”

In this case, there is an obvious question over whether, and if so to what extent, TN’s current immigration status in this jurisdiction, and that of his mother as his primary carer, impacts on his ability to achieve “settlement” for the purposes of Art 12 of the 1980 Hague Convention. Relevant to this are the following observations of Baker LJ in Re B:

“[66] I endorse the summary of the legal principles applicable to Article 12(2) set out in the judgment of Williams J in Re B (A Child) [2018] EWHC 1643 (Fam). The summary was cited by the judge and not challenged in argument before us. There is, however, one point of divergence on the authorities which calls for consideration here.

[67] As noted above, in her discussion of Article 12 in Re N, which has been substantially followed by other judges, including by this Court in Cannon v Cannon, Bracewell J observed that establishing that a child was settled in her new environment required the abducting parent to demonstrate that the "present position imports stability when looking at the future, and is permanent in so far as anything in life can be said to be permanent". In my view, though settlement plainly implies arrangements that are long-term rather than transient, it is, as the commentators cited above have observed, "going too far" to require the respondent to demonstrate that they are "permanent". There is no good reason for introducing a requirement that the abducting parent must demonstrate that the family environment in which it is asserted the child is settled is a permanent one. My conclusion on this point is consistent with the approach taken in the first-instance cases cites at paragraph 14 above – Re C (Sir Mark Potter P) and Re E (Moylan J) – in which the court 4 found the child to be settled in their new environment notwithstanding uncertainty as to their immigration position.”

In the foregoing context, and as noted by Baker LJ in Re B at [14], judges at first instance have held, on the facts of the individual case, that the fact that the immigration position of the mother and child in this country is uncertain does not prevent the child from having acquired the necessary degree of settlement under Art 12.

In In re C (Child Abduction: Settlement) [2006] EWHC 1229 (Fam); [2006] 2 FLR 797 Sir Mark Potter P held that, in circumstances where there was no question of extradition proceedings in respect of the mother, the Home Office was well aware of the position of the mother and her wish to remain and had taken no action, where it was not a case where the mother arrived, or had since moved about, as a fugitive from justice and where she had done anything to avoid the attention of the Home Office, the mother’s immigration position did not prevent settlement within the meaning of Art 12 being established. In In re E (Abduction: Intolerable Situation) [2008] EWHC 2112 (Fam); [2009] 2 FLR 485 Moylan J (as he then was) held that, on the evidence, it could not be assumed that it was likely that the child or his mother would be deported in the near future, particularly in circumstances where the evidence suggested that “there is at least one route available to them by which they might acquire the right to reside in this country.”

Finally, there was some debate during the hearing regarding the date on which the question of settlement falls to be determined. The approach adopted by Bracewell J in Re N (Minors) (Abduction) [1991] 1 FLR 413 was accepted in subsequent cases, including in Re O (Abduction: Settlement) [2011] EWCA Civ 128, [2011] 2 FLR.1307 and SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228. In Re N, Bracewell J held:

“The question has arisen in this case as to the meaning of the word “now” in Art 12, in the context of “unless it is demonstrated that the child has now settled in its new environment”. Counsel for the mother has argued that “now” means: “today” in deciding the issue. Mr Holman for the father has argued “now” must mean “the date of commencement of the proceedings” rather than “the date of the hearing”. In the absence of any decided authority drawn to my attention, I find that the word “now” refers to the date of the commencement of proceedings, as otherwise any delay in hearing the case might affect the outcome. However, that is a purely academic finding because, on all the circumstances of the present case, it makes no material difference to my conclusions, whichever of the two dates is chosen”.

More recent first instance authorities have favoured the opposite conclusion, namely that the date on which the question of settlement falls to be determined is the date of the final hearing. In E v L (Abduction: Settlement) [2021] EWHC 2758 (Fam), [2021] 4 WLR 134, Mostyn J held that the use of the word “now” in Art 12 of the Convention requires the court to assess settlement as of the date of the final hearing. Mostyn J noted that his interpretation was consistent with two first instance decisions from other Hague jurisdictions, the first from Australia in State Authority v Castillo [2015] FAMCA 792 at [21], a decision of Bennett J, and the second from the United States in Wojik v Wojik 959 F Supp 413 (ED Mich 1997) at [3], a decision of Cohen J. Mostyn J’s reasons for rejecting the approach taken by Bracewell J in Re N (Minors) (Abduction) are set out in paragraphs [61] to [64]:

“[61] The problem with that interpretation is that it is first and foremost completely contrary to the natural meaning of the word “now”. The word “now” means now; it does not mean then.

[62] The second problem is that the word “now” when written down by the framers of the treaty in 1980 must have been a reference to the date of trial. When article 12 was drafted the framers were well aware that there would be some delay between the date of application and the date of trial. Indeed in article 11 there is a requirement if there has not been a decision within six weeks of the date of commencement of the proceedings for a reason for the delay to be supplied. In such circumstances it is inconceivable that the framers could have intended that settlement was to be assessed at an earlier date than the date of trial. If the framers had intended the analysis to be done at an earlier date then article 12 would have said “unless it is demonstrated that the child, at the date of the commencement of the proceedings, is settled in its new environment”. But it did not say that.

[63] The third problem is that the clear intention of the framers of the exception was that a child who is settled in the second state should not sent back to the first state. The interpretation of Bracewell J might result in a child who was not settled as at the date of the commencement of proceedings, but who had become settled by the date of trial, being sent back. This would be completely perverse.

[64] Bracewell J was persuaded to adopt such an artificial and unnatural meaning of the word “now” because “any delay in hearing the case might affect the outcome”. It is true that the passage of time might change the children’s status, and that in such a sense the outcome of the case might be affected, and the claim of the left behind parent prejudiced. But the opposite side of the same coin is that not to look at settlement as at the date of trial could prejudice the children whose interests are surely as important as those of the left behind parent, if not more so.”

The approach of Mostyn J was endorsed by Harrison J in Re G and B (Children) (Abduction: Settlement: Grave Risk: Ukraine) in which Harrison J held as follows:

“[53] While it may be an outlier, I find Mostyn J's analysis persuasive and agree with it. His interpretation of Article 12 makes sense linguistically (see paragraphs 61 and 5 62 of his judgment), but more importantly it is consistent with the child-centric nature of the exception emphasised in Re M and the aim of the Convention more generally to operate so as to promote the interests of children. As Mostyn J put it at paragraph 63:

“The interpretation of Bracewell J might result in a child who was not settled as at the date of the commencement of proceedings, but who had become settled by the date of trial, being [automatically] sent back. This would be completely perverse." With the addition of my word in square brackets, I respectfully agree.”

[54] The issue may well become significant in cases which are remitted following an appeal or which otherwise have been subject to lengthy delays (perhaps because of a concurrent asylum claim). In my view, it would be absurd and wholly inconsistent with the child's interests, if the court was required to examine an historical position and ignore more recent information. It could also create real forensic difficulties, bearing in mind that in settlement cases the most important evidence relating to the issue is usually a report from Cafcass which examines the child's circumstances as they presently are. So far as I am aware, it has never been suggested that issues such as a child's objections or questions of intolerability must be examined at the date proceedings commence. I can see no logical reason for adopting a different approach to the question of settlement.”

Finally, if the court determines that a child is settled for the purposes of Art 12 of the 1980 Convention, it nonetheless retains a discretion to make a return order. The classic exposition of the nature and exercise of the discretion is given by Baroness Hale in Re M (Zimbabwe) [2007] UKHL 55, [2008] 1 AC 1288:

“In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer "hot pursuit" cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community.”

The proper approach to Art 13(b) and the question of grave risk of exposure to physical or psychological harm or otherwise place the child in an intolerable situation is set out in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144. The applicable principles may be summarised as follows:

Whilst the evaluation of Art 13(b) proceeds on the assumption that the allegations made by the respondent are true, as made clear by Moylan LJ in Re C (Children) (Abduction Article 13(b)) [2018] EWCA Civ 2834, the approach in Re E does not mean that there is no assessment of the credibility or substance of the allegations. In Re A (Children) (Abduction: Article 13(b)) [2021] EWCA Civ 939, [2021] 4 WLR 99 Moylan LJ articulated the position by reference to the Guide to Good Practice under Art 13(b). Having quoted the judgment of Baroness Hale in Re E, Moylan LJ observed in Re A (Children) (Abduction: Article 13(b)) that:

“[92] This does not mean, as I said in In re C, at para 39, that it was being "suggested that no evaluative assessment of the allegations could or should be undertaken by the court". In support of this conclusion, I quoted what Black LJ (as she then was) had said in In re K (A Child) (Abduction: Child's Objections) [2015] EWCA Civ 720 at [53], about the In re E approach: “I do not accept that a judge is bound to take this approach if the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an article 13b risk.” I would emphasise that Black LJ was referring to discounting the possibility that the allegations would give rise to an article 13(b) risk. She was not otherwise diverging from the approach set out in In re E. It is also plain that she was referring to the end of the spectrum, namely when the court was able confidently to discount the possibility that the allegations gave rise to an article 13(b) risk. This is not to dance on pins but is a distinction of substance derived from the court not being in a position to determine the truth of the allegations relied on as establishing the article 13(b) risk.

[93] It was for this reason that, in re C at para 39, I commented that “a judge has to be careful when conducting a paper evaluation” of the evidence. The court has to be careful for the reason given by the Supreme Court, at para 36, namely “the inability of the court to resolve factual disputes”. This creates the “tension” there identified between this inability and “the risks that the child will face if the allegations are in fact true”. This led the Supreme Court to adopt the "pragmatic and sensible solution" set out above. In its concluding paragraphs in In re E, the Supreme Court repeated, at para 52:

"Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be."

[94] In the Guide to Good Practice, at para 40, it is suggested that the court should first "consider whether the assertions are of such a nature and of sufficient detail and substance, that they could constitute a grave risk" before then determining, if they could, whether the grave risk exception is established by reference to all circumstances of the case. In analysing whether the allegations are of sufficient detail and substance, the judge will have to consider whether, to adopt what Black LJ said in In re K, “the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an article 13(b) risk”. In making this determination, and to explain what I meant in In re C, I would endorse what MacDonald J said in Uhd v McKay [2019] EWHC 1239 (Fam), [2019] 2 FLR 1159, para 7, namely that "the assumptions made by the court with respect to the maximum level of risk must be reasoned and reasonable assumptions" (my emphasis). If they are not "reasoned and reasonable", I would suggest that the court can confidently discount the possibility that they give rise to an article 13(b) risk.”

If the court concludes that it cannot confidently discount the possibility that the allegations give rise to an article 13(b) risk and the allegations, taken at their highest, are of such a nature and of sufficient detail and substance that if true they could constitute a grave risk, the court moves on to consider whether protective measures are capable of meeting the level of risk assumed. In undertaking that evaluation, the authorities make clear that the court will be guided by the following principles:

Whilst the court again retains a discretion to order the return of the subject child where the exception provided by Art 13(b) is established, where the court has concluded that the harm exception is made out and that no protective measures can be put in place that will sufficiently meet the level of risk assumed to exist, it will ordinarily not be appropriate to exercise that discretion in favour of making a return order notwithstanding those conclusions.

In summary, therefore, the stages for determining whether the mother is able to rely in this case on the harm exception in Art 13(b) of the 1980 Hague Convention in accordance with the foregoing principles can be summarised thus:

Having listened carefully to the helpful and comprehensive submissions of leading and junior counsel, I am satisfied that the mother has established the exceptions to return under Art 12 and Art 13(b) in this case, that it is not appropriate in this case to exercise my discretion to make a return order in any event and, accordingly, that the father’s application must be dismissed. My reasons for so deciding are as follows.

With respect to the date on which the question of settlement falls to be evaluated for the purposes of Art 12 of the 1980 Hague Convention, I agree with interpretation adopted by Mostyn J in E v L (Abduction: Settlement) and endorsed by Harrison J in Re G and B (Children) (Abduction: Settlement: Grave Risk: Ukraine).

The wording of Art 12 does, in my judgment, favour the relevant date being the date of the final hearing. The wording of Art 12 itself does not provide any obvious link between the commencement of proceedings and the settlement in a new environment. Indeed, the use of the term “is now settled” (emphasis added) tends to indicate the opposite. Where Art 12 is relied on, the competent authority in the requested State is required to decide whether or not the child is settled. The use of the term “is now settled” strongly suggests that, in evaluating Art 12 when it is making its decision, the competent authority is required to consider the situation at the time that the decision is made by the competent authority, in this jurisdiction the final hearing, and not the situation that pertained at a point in the past when proceedings were issued. As counsel in E v L (Abduction: Settlement) identified for Mostyn J, this is the interpretation that has been applied in two other Hague jurisdictions, as demonstrated by the Australian decision in State Authority v Castillo and the US decision in Wojik v Wojik.

I am not able to accept Ms Baker’s submission that the fact that the settlement exception is not available as a defence once proceedings are issued within the one year period, even if significant further delay ensues taking the proceedings beyond the one year mark, acts to change this interpretation. The context for that position is the expectation, in accordance with Art 11, that proceedings under the 1980 Hague Convention will be resolved in six weeks. As such, in determining that the settlement exception is not available as a defence once proceedings are issued within the one year period, the drafters of the Convention were obviously proceeding on the basis that the application would be resolved promptly following the date of issue.

As both Mostyn J and Harrison J concluded, I too consider holding that the relevant date is the date of the final hearing accords closely with the child-centred nature of the settlement exception provided by Art 12 of the 1980 Hague Convention. Within that latter context, I cannot accept the father’s submission that the relevant date should be the date the proceedings are issued because this would prevent later set-aside applications based upon the child becoming settled should further delay in an asylum process ensue after issue. It would be antithetic to a child-centred approach for the court to operate on the basis that once a child is determined not to have been settled as at the date of issue, that position is fixed for all time, regardless of later developments. This further demonstrates, to my mind, the correctness of an interpretation that results in settlement being assessed at the date of the final hearing, such that all of the child’s circumstances can be factored into a decision that places the child at its centre.

In light of the conclusions set out above, I turn to consider the settlement exception as of the date of the final hearing commencing on 2 December 2025, as opposed to the date on which the father’s application was issued on 5 June 2025. On the evidence before the court, I am satisfied that, as at 2 December 2025, TN was settled in the jurisdiction of England and Wales for the purposes of Art 12. I should also observe that, had I concluded that the relevant date was the date of issue on 5 June 2025, on the evidence before the court I would still have reached the conclusion that TN was settled in this jurisdiction.

TN has been in England and Wales now for some 2 years and 3 months, more than half of his life following his arrival on 31 July 2023. TN and his mother lived at the same address from December 2023 until 8 August 2025, and now live together at a new address known to the court. Since August 2023, TN has been registered at a GP. The evidence available to the court demonstrates that TN has a clear and stable routine. Since January 2024 he has been attending nursery. At his previous nursery he had been attending for 4 days per week with a 100% attendance record. The evidence before the court demonstrates that he has developed well and has good relationships with his peers. It is particularly striking that, after he moved with his mother to a new area, his friends from his former area travelled a long distance to visit him for his birthday celebrations. I consider this to be powerful evidence in support of settlement. TN’s nursery provided the Children’s Guardian with a report that states that:

“…TN is very settled quietly confident child - he is fun loving and happy child - he enjoys all activities. Attendance is regular and he presents well and is always neat and smartly dressed”.

Within this context, I accept the evidence of Ms Odze. On behalf of TN, as his Guardian Ms Odze advanced a positive case that TN is settled for the purposes of Art 12. In her report, Ms Odze drew the following conclusions having conducted her enquiries with the parents and having met TN:

During the course of her oral evidence, whilst cross-examined effectively by Ms Baker on behalf of the father, Ms Odze maintained the following:

On behalf of the father, Ms Baker criticises Ms Odze’s analysis because it “openly reaches a particular conclusion” and alleges that her report is “unbalanced and partial”. I reject those submissions. There is no evidence whatsoever before the court to demonstrate bias or the appearance of bias. It is the case that the question of whether TN is settled for the purposes of Art 12 is, ultimately, one for the court. However, there is nothing to preclude the Children’s Guardian from stating her own conclusion on that issue if that is what she considers her assessment demonstrates. The court can then decide whether, and if so what, weight is to be attached to that conclusion in all the circumstances of the case. It is clear from her report that Ms Odze balanced the information available to her and, as she expressly concludes in her report, “On balance, I consider that TN, who has lived here for more than half of his life, is settled in the UK” (emphasis added).

I acknowledge that the father points to a number of factors that he contends militate against TN having settled in this jurisdiction. These ‘ten points’, as Ms Baker articulated them, tended to centre on the early period of TN’s time in this jurisdiction, including that he struggled in August and October 2023, moved to three different locations with significant change each time and in circumstances not in the mother or TN’s control. Ms Baker also points to early difficulties with contact for the father. Within this context, the father points to the fact that the mother described, in her own statement, how much TN had struggled when they first moved to England, including losing 3kg in weight because “he wasn’t receiving the necessary nutrients, couldn’t eat hotel food”. The father further points to a letter, dated 4 June 2025, from TN’s previous nursery that states that “we have noticed a significant change in his progress from being a shy child to now being an outgoing and very energetic child, who is very confident with lots of friends and who has a great relationship with all the staff members” and TN “catching up in language & communication due to English as an additional language”.

I accept that Ms Odze considers it likely that TN had been exposed to adverse harmful experiences until he came to the United Kingdom in July 2023 as a consequence of the parents’ separation and the consequent strained relationships between the mother and members of the maternal family, and TN being “…cut off from all of those who should been close to him”. To my mind, however, rather than demonstrating a lack of settlement, the matters relied on by the father tend to reinforce the fact of TN’s settlement, demonstrating as they do evidence of a trajectory from disruption and uncertainty to routine and settlement. The fact that TN had a difficult start to life in this country throws into still sharper relief the level of settlement the evidence demonstrates he has now achieved.

Whilst Ms Baker also put to the Children’s Guardian that TN has moved several times, Ms Odze countered that on each occasion he had settled quickly and “made new friends, adjusted, got on with it”. To demonstrate a lack of settlement Ms Baker also prayed in aid that the mother is reliant on food and clothing banks to meet TN’s needs. However, I accept the evidence of the Children’s Guardian that this is not a sign of disruption or insecurity but rather “it is to [the mother’s] credit that she is not too proud to use them to meet TN’s needs” and “teaches children to help others in need and is nothing to be embarrassed about”. I am likewise not able to accept the submission that the fact that TN, who is four years old, was shy when he met Ms Odze undermines the mother’s case regarding settlement.

I have also considered carefully Ms Baker’s submission that difficulties with contact immediately following the arrival of TN and the mother in England militate against a conclusion that TN is settled for the purposes of Art 12. The father was made aware of TN’s whereabouts on 8 August 2023. Since that time, the evidence suggests that the mother has actively promoted the father to, and promoted his contact with, TN. As I have noted, TN speaks to his father everyday by video call every day at 4pm GMT (the evidence suggests that the mother proposed the current arrangement of daily contact and facilitated that contact despite TN’s distress and lack of memory or recollection of the father). Within this context, TN’s contact with his father has progressed significantly. TN likes to speak to his father, which provides him with an opportunity to speak Albanian.

I have also been mindful of the delay that the father contends he experienced with the Albanian Central Authority in processing his application, the father in his statement asserting that it would be “...unjust for RN to be able to rely on the defence of settlement based on the long period of time it has taken for my application for the return of TN to be processed.” However, as I have set out, the Art 12 exception is a child-centric one. TN’s perspective and his own lived experience are central to the evaluation of whether the Art 12 exception is made out. In the circumstances, whilst the reasons for the considerable delay in the father’s application coming before this court are a matter of concern, the court’s focus remains squarely on TN. Whilst the father’s application has been delayed, TN has lived in the United Kingdom for over half of his life in the circumstances I have set out above. As such, whilst it must attract the court’s sympathy, I am satisfied that the delay experienced by the father does not weigh heavily in the balance when considering the position of TN under Art 12.

Finally, a similar analysis must apply in my judgement to the question of the extent to which the uncertain immigration status of TN, and his mother, impacts whether it can be said TN is settled for the purposes of Art 12. Again, consideration of that question must include TN’s point of view. He is four years old. In the circumstances, I am satisfied that he has little if any understanding of his immigration position and what it might mean for his future. Likewise, given the level to which the mother is meeting his needs, TN likely does not understand the experience of being an asylum seeker and all of the disadvantages that go with it. Whilst it is the case that he is an asylum seeker whose application has been refused and is now subject to an appeal, TN’s experience of life now is that he lives in nice accommodation, with a mother who meets all of his needs to a high standard and a nursery which he enjoys and at which he has peers who are his friends. Within this context, whilst I accept that TN’s immigration status is a relevant factor when considering settlement, it is a factor that on the facts of this case carries only minimal weight.

In the foregoing context, I am satisfied that considering the question of settlement “holistically” rather than in stages, and taking into account all of the relevant circumstances bearing in mind that within the confines of a summary process the picture is likely to be incomplete, I am satisfied that as at the date of the final hearing TN is settled in the jurisdiction of England and Wales for the purposes of Art 12 of the 1980 Hague Convention. I am further satisfied that it would not be appropriate to exercise my discretion to make a return order in any event.

In considering whether, notwithstanding my conclusion that TN is settled in the jurisdiction of England and Wales for the purposes of Art 12, I should exercise my discretion to make a return order, I have again borne carefully in mind the observations of Baroness Hale in Re M (Zimbabwe):

“In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer "hot pursuit" cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community.”

A decision to return TN to Albania notwithstanding the conclusion that he is settled in this jurisdiction for the reasons set out above, would necessarily disrupt very many of the positive aspects of life and community that have resulted in TN becoming settled here. That disruption would not be in his best interests. This conclusion is reinforced by the fact that, as set out above, Ms Odze concludes that, having applied the Cafcass Practice Aid “Resilience /Vulnerability Matrix”, TN is a very young child who is, by reason of his experience of family breakdown, separation from his father and families on both sides, possibly direct and indirect exposure to domestic abuse in the first few months of his life and after the parents’ separation and a move to a new country which involved moving to different addresses, a vulnerable child.

In the circumstances, Ms Odze was clear in her evidence that TN is not a resilient child and would, therefore, find it difficult to return to Albania. I also bear in mind the length of time that TN has been in this jurisdiction. Whilst sufficient to establish the settlement exception for the reasons I have given, it also has the consequence that he has spent more time in this country than in Albania and lived here during his formative language development. TN does not speak “much Albanian” and, on his mother’s account, it would be hard for him to adjust to a return to Albania. These matters would, I am satisfied, compound the difficulties caused by a return disrupting the positive aspects of life that have resulted in TN becoming settled. The mother is meeting TN’s needs and, as noted by Ms Odze, the father did not express any concern about any specific factors that may pose a risk to TN whilst he is in the care of his mother.

Whilst the Convention policy regarding swift return will not likely carry significant weight in the exercise of the court’s discretion in a settlement case, for the reasons set out in Re M (Zimbabwe), the policy underpinning the Art 12 settlement exception will. Namely, as Williams J noted in In Re B (A Child)(Custody Rights: Breach), to enable the court, in furtherance of the welfare of the child, to decline a summary return because imposing a summary return without a more detailed consideration of welfare might compound the harm caused by the original abduction by uprooting a child summarily from his by now familiar environment. In addition to not being commensurate with his welfare needs, the exercise by the court of its discretion to make a return order, notwithstanding its conclusion that summary return without a more detailed consideration of welfare might compound the harm caused by the original abduction by uprooting TN summarily from his new environment, would run counter to the policy underpinning Art 12.

I am, of course, mindful that not to return TN to Albania will interfere with his relationship with his father by making contact under the existing court order in Albania more difficult. This is particularly so where the prospects of the father securing a visa to enter the United Kingdom appear remote given the past rejection of his applications. However, that issue must be seen within the context of the scope of the decision the court is making in this case.

In refusing to exercise its discretion to make a return order, the court is not making a final determination with respect to the welfare issues between the parents, including contact. Rather, it is simply confirming the jurisdiction in which that determination will now take place, following a detailed consideration of TN’s welfare. As pointed out by Mostyn J in B v B [2014] EWHC 1804 a decision under the 1980 Hague Convention is for a specific purpose pending determination of the long-term welfare position. Within this context, if the father seeks to pursue direct contact, he is able to do so in the English court under the provisions of Art 21 of the 1980 Hague Convention. In these circumstances, I do not consider that the difficulties the father will experience in developing contact change the court’s evaluation with respect to the exercise of its discretion.

For the reasons set out above, I decline to exercise my discretion to make a return order.

Whilst my conclusions in respect of Art 12 are sufficient to deal with this matter, I consider it appropriate also to set out my conclusions with respect to the Art 13(b) exception. In their Position Statement on behalf of the mother, Mr Gration and Mr Langford summarise the mother’s factual case on domestic abuse as follows:

The mother contends that, taken at their highest, these matters plainly establish a grave risk of physical or psychological harm to TN or would otherwise place him in an intolerable situation for the purposes of Art 13(b) were a return order made and that, in consequence, the court should move to consider the adequacy of protective measures, which the mother contends are not sufficient in this case.

The father submits that the evidence before the court enables the court confidently to discount the possibility that the mother’s allegations, as summarised above, give rise to a grave risk for the purposes of Art 13(b). In this regard, Ms Baker identifies certain forensic difficulties with the allegations that she submits are relevant to that question:

Whilst I have given careful consideration to each of these matters, I am satisfied that the court cannot confidently discount the possibility that the mother’s allegations give rise to a grave risk for the purposes of Art 13(b). The mother makes particularised and wide-ranging allegations of domestic abuse and coercive and controlling behaviour over an extended period of time. Whilst she did not obtain relief, she drew her allegations to the attention of the Albanian authorities. The mother’s sister provided a witness statement with respect to the alleged incident in 2022. The father makes a limited number of admissions with respect to the conduct alleged by the mother, including spitting at her and attending her home uninvited, leading the mother to seek protection from the police and make a civil application for injunctive relief.

In the alternative, the father concentrates his case on the submission that, taking the allegations made by the mother at their highest, they do not establish a grave risk that return would expose TN to physical or psychological harm or otherwise place him in an intolerable situation for the purposes of Art 13(b). Again, I am not able to accept that submission.

The consistent and serious behaviour which the mother describes, as summarised above, corresponds with the domestic definition of domestic abuse contained in s.1(3) of the Domestic Abuse Act 2021, namely behaviour that consists of physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse; or psychological, emotional or other abuse.

Whilst there are obvious difficulties in attempting to ascribe a level of severity to conduct that is always unacceptable and to be deprecated, and acknowledging that this court has not engaged in a formal fact finding exercise given the present procedural context, the allegations of domestic abuse and controlling behaviour made by the mother are, in my judgment, at the serious end of the spectrum of such abuse. The alleged domestic abuse and coercive and controlling behaviour extends in this case, at its highest, to repeated incidents of physically abusive behaviour involving punches and slaps to the head and face, forceful pushes and on one occasion the threatened use of a hammer. That conduct is alleged to have been perpetrated both in public and when the mother was vulnerable following a pregnancy. The father admits an incident of spitting and an incident of attending the mother’s home uninvited. In addition, the allegations involve repeated incidents of emotional abuse, including demands for abortion and denigrating and belittling comments such as “you are worthless, you are less than a woman” and “your brain is so small I can hold it in the palm of my hand and play with”, and controlling behaviour that kept the mother isolated from society. As I have noted, the mother’s allegations include a threat to kill the mother made on 23 May 2023.

The fact that domestic abuse and coercive and controlling behaviour places children at risk of physical and psychological harm is clearly articulated in FPR 2010 PD12J. As this court observed in H v O (Art 13(b) and Domestic Abuse) [2025] EWHC 114 (Fam) at [81] and [82]:

“[81] The observation of Hale LJ (as she then was) in TB v JB (Abduction: Grave Risk of Harm) that “We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it” pre-figured the evolution that has taken place in this jurisdiction over the past three decades in the understanding of the impact of domestic abuse on children. In 2000, Dr Claire Sturge and Dr Danya Glaser provided in Contact and Domestic Violence – The Experts’ Court Report [2000] Fam Law 615, a detailed analysis of the impact of domestic abuse on children. That evolution in understanding continued through FPR PD12J and the Domestic Violence Act 2021.”

The Children’s Guardian likewise points to the risk of physical and emotional harm arising from a child being exposed to domestic abuse:

“[37] I have utilised the Cafcass’s Child Impact Assessment Framework (CIAF 2018) from which I understand that the effect on a child of domestic abuse cannot be underestimated. Much has been written about impairment suffered by children who are exposed to or witness domestic abuse when defining significant harm. Research from Callaghan (2015) indicates that children experience domestic abuse not just as witnesses but as victims. Domestic abuse creates a distressing, stressful and harmful environment. Importantly and applicable to TN’s situation, according to (Enlow et al 2012), exposure to domestic abuse (including disagreements as [EN] described it which, if they developed into arguments, they would come under the umbrella of domestic abuse) particularly in the first two years of life is especially harmful.”

Again, I accept that the father has been able to identify certain forensic difficulties with the mother’s allegations as summarised above. However, having declined confidently to discount the allegations, this court is engaged in a process of assessing risk and not in a process of finding facts. The forensic points identified might, to adopt the phrase used by Mr Gration during the hearing, be grist to the mill of a competent cross-examiner at a fact finding hearing. But this court is not deciding whether the allegations made by the mother are proved on the balance of probabilities. It is deciding whether, at their highest, the allegations could constitute a grave risk of harm that requires to be protected against. As such, where the court has determined that it cannot confidently discount the allegations, it is the principles governing risk assessment that thereafter fall to be applied and not the principles governing fact finding.

Within the context of the exercise in which this court is engaged in summary proceedings, I am satisfied having regard to the matters set out above that, taken at their highest, the mother’s allegations of domestic abuse, coercive and controlling behaviour and threats to kill do establish a grave risk of physical or psychological harm to TN or otherwise intolerable situation for the purposes of Art 13(b).

The position is more complicated in respect of the mother’s mental health as an asserted source of grave risk of physical or psychological harm or otherwise intolerable situation for TN.

In Re S (A Child) [2012] 2 AC 257 at [27], Lord Wilson articulated the import of the decision of the Supreme Court in Re E in cases where it was asserted that parenting of the taking parent would be destabilised by a decision to return the child, to the extent that the child’s situation would be intolerable:

“[27]...this court considered the situation in which the anxieties of a respondent mother about a return with the child to the state of habitual residence were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child’s situation would become intolerable. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk; and will, among other things, ask itself whether they can be dispelled. But in In re E it was this court’s clear view that such anxieties could in principle found the defence. Thus, at para 34, it recorded, with approval, a concession by Mr Turner QC, who was counsel for the father in that case, that, if there was a grave risk that the child would be placed in an intolerable situation, “the source of it is irrelevant: e g, where a mother’s subjective perception of events lead to a mental illness which could have intolerable consequences for the child”. Furthermore, when, at para 49, the court turned its attention to the facts of that case, it said that it found

“no reason to doubt that the risk to the mother’s mental health, whether it be the result of objective reality or of the mother’s subjective perception of reality, or a combination of the two, is very real”.

As to the question that the court is required to answer in the forgoing context, Lord Wilson stated as follows inRe S (A Child) at [34]

“The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.”

The evidence of Dr Van Velsen, and additional material in the bundle, confirms that the mother described post-traumatic symptoms namely intrusive memories of what she experienced, nightmares and anxiety and that she, subjectively, described feeling desperate in her mood and having symptoms of anxiety, including panic attacks, nightmares and bad memories. Dr Van Velsen noted that those symptoms had also been described in the mother’s medical records and that the mother had been receiving appropriate treatment for the symptoms she has described, namely an antidepressant and psychological care. Dr Van Velsen’s that report further opined that “Were it to be found that the abuse was as [the mother] has described, then her symptoms would be characteristic of someone who was in a situation of domestic abuse of the types alleged” (emphasis added).

Against this, Dr Van Velsen was clear in her report, and emphasised in her oral evidence, that the mother did not, objectively, display any signs of a mental disorder, for example low mood or significant anxiety. Dr Van Velsen considered that the mother’s presentation did not reflect her description of her symptoms and that she was concerned that the mother had some tendency to overstate her symptoms, which could reflect her anxiety about returning to Albania, in the context of the ongoing proceedings. Within this context, Dr Van Velsen did not diagnose the mother as suffering from any psychological condition, mental health condition or trauma. Importantly, she did not consider that she had enough information to address fully the question of the impact on the mother of an ordered return to Albania. Further, in circumstances where these proceedings are not of the type of proceedings in which the court makes findings of fact, the question of whether the mother’s symptoms are consistent with her allegations cannot be determined definitively.

During the course of her oral evidence, notwithstanding careful cross-examination by Mr Gration on behalf of the mother, Dr Van Velsen again emphasised that, without a finding that the domestic abuse the mother alleges happened, Dr Van Velsen was in difficulty in providing an assessment of the impact on the mother of a return order being made. She further reiterated that there was “some incongruence between her statements and her presentation”. Dr Van Velsen cautioned that, in her opinion, it is important for the mother to portray she is suffering in circumstances where she is invested in staying in this jurisdiction and not returning to Albania. Dr Van Velsen was further of the opinion that, in the absence of an objective history and the prevalence of self-reporting, she considered the mother to present as “quite a robust and resilient person” with no “history of her breaking down”. Cross-examined by Ms Baker, Dr Van Velsen concluded that “as a psychiatrist, I do not think a deterioration is foreseeable because she has strengths and I do not have past history.”

Having regard to the evidence of Dr Van Velsen, I am not satisfied that the court can conclude in this case that, whatever the objective level of risk, nevertheless the mother demonstrates anxieties of such intensity as to be likely, in the event of a return, to destabilise the her parenting of TN to a point where his situation would become intolerable. Consideration of the nature of the risk attendant on the mother’s mental health, the likelihood of the risk materialising, and the consequences of the risk materialising for TN, with a view of answering the ultimate question, namely whether there is a grave risk that returning TN to Albania would expose him to psychological harm or otherwise place him in an intolerable situation, does not in my judgement lead to a conclusion that the impact on the mother’s mental health if a return order was made would be such as to lead to a grave risk of physical or psychological harm or otherwise intolerable situation for TN.

Turning to the question of protective measures in the context of my conclusion that the mother’s allegations of domestic abuse, coercive and controlling behaviour and threats to kill do establish a grave risk of physical or psychological harm to TN or an otherwise intolerable situation, the father offers what are described in the Skeleton Argument on his behalf as “the standard proposals for non-molestation, non-prosecution and non-separation undertakings”. In addition, the father offers either:

As part of considering the sufficiency of the protective measures offered by the father, the question arises (as it will in all proceedings) as to whether those protective measures, including undertakings given to this court, would be recognised and enforceable in Albania.

It is well established that foreign law is a question of fact (see FS Cairo v Lady Brownlie [2021] UKSC 45, [2022] AC 995). Accordingly, where the question of enforceability of protective measures under the law of a foreign jurisdiction is in issue, the court may need to make findings with respect to foreign law, usually with the benefit of a jointly instructed expert report on the relevant laws of the jurisdiction in question. That exercise has been hampered in this case by the inability to identify a jointly instructed expert in Albanian law. Consequently, and as a function of necessity in circumstances where all other avenues have been extensively investigated and exhausted, the parties were each directed to file opinions from their respective Albanian lawyers. These opinions revealed significant disagreements on several relevant points. In addition, it is not entirely clear from either report that they encompass the concept of undertakings as they are understood in this jurisdiction.

As noted by Sir Mark Potter in Re K (Children) [2009] EWHC 1066 (Fam), [2010] 1 FLR 57 at [13], in a similar situation of disagreement between Spanish lawyers, it is “a thoroughly unsatisfactory state of affairs” that an English judge should be required to rule upon a question involving the application of foreign law in relation to the rights of the parties.

In Re K (Children), the former President addressed this difficulty by concluding that “I thus have scant material before me but must do my best with what I have.” However, in my judgment the decision in Re K (Children) must be read in light of the subsequent decisions of the Court of Appeal emphasising, in respect of protective measures, (i) the need to consider in concrete terms the position of the child upon return (which will necessarily include any protective legal framework from which the child may benefit), (ii) the need to examine the extent to which the protective measures proposed are likely to be effective both in terms of compliance and in terms of the consequences, including remedies, in the absence of compliance and (iii) the need for the court to have sufficient evidence to satisfy itself of these matters.

In the context of that rigorous exercise, and in the absence of satisfactory expert evidence on the law of the requesting State regarding recognition and enforcement of the protective measures in issue, there may be other factors that enable the court to be satisfied that sufficient protective measures can be demonstrated. In particular, Albania is a Contracting State to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (hereafter the “1996 Hague Convention”). As Cobb J (as he then was) held in T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415, [2024] 1 FLR 1279, at paragraph 53:

“In many cases, parties may be able to rely on the arrangements contained within the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children ("1996 Hague Convention"). The 1996 Hague Convention can add to the efficacy of some protective measures by ensuring that they are recognised by operation of law in other contracting states and can be declared enforceable at the request of any interested party in accordance with the procedure provided in the law of the state where enforcement is sought (see Article 26)…”

There remains some uncertainty as to the extent to which interim protective measures under Art 11 of the 1996 Hague Convention can be validly deployed by a court seeking to ensure the safe return of a child to the jurisdiction of their habitual residence under the 1980 Hague Convention following a wrongful removal or retention. In this context, in a footnote to paragraph 6.4 in the Handbook to the 1996 Hague Convention the following is stated:

“In relation to example (4), (Footnote: ¹) it was suggested at the 2011 Special Commission (Part I) that whilst measures which facilitate the safe return of a child in the context of a return application under the 1980 Convention are extremely valuable, they may not always suggest a “case of urgency” (such that Art. 11 can be relied upon for a basis for jurisdiction to take these measures). This would particularly be the case in light of the strict interpretation of “urgency” called for in the Explanatory Report. In contrast, it was pointed out that the use of Art. 11 in such circumstances was an important addition to the “toolbox” which authorities have at their disposal to ensure the “safe return” of a child following a wrongful removal or retention. It was further suggested that a case involving the need for measures to be taken to ensure a child’s safe return to the State of his / her habitual residence would usually be a “case of urgency” such that Art. 11 can be relied upon. In the Conclusions and Recommendations of the 2011 Special Commission (Part I) the following was noted (at para. 41): “[T]he 1996 Convention provides a jurisdictional basis, in cases of urgency, for taking measures of protection in respect of a child, also in the context of return proceedings under the 1980 Convention. Such measures are recognised and may be declared enforceable or registered for enforcement in the State to which the child is returned provided that both States concerned are Parties to the 1996 Convention.”

Absent measures that can confidently be said to fall within the scope of the 1996 Hague Convention, and in those cases where the requesting State is not a party to the 1996 Hague Convention, a court faced with inadequate and contradictory evidence regarding the likely efficacy of the protective measures proposed (in this case the necessarily partial and starkly competing opinions of the parties’ own Albanian lawyers) should not be required simply to “do the best it can” with that unsatisfactory evidence. Indeed, to do so may be counterproductive, and at worst dangerous, where the court cannot come to reliable conclusions as to the effectiveness of the protective measures. Rather, where there is no prospect of securing better evidence, the court may be forced to conclude that it does not have, and cannot obtain, sufficient evidence on the extent to which the protective measures proposed will be effective in providing the protection from the risk identified. In such circumstances, the court will likely have to further conclude that it cannot be satisfied that the concrete situation on the ground upon return will be such that the child will be sufficiently protected from the grave risk identified.

In examining the sufficiency of the protective measures proposed in this case, the grave risk of exposure of TN to physical or psychological harm or an intolerable situation extends, at its highest, to exposure to witnessing repeated incidents of physically abusive behaviour involving punches and slaps to the head and face, forceful pushes, admitted spitting, the threatened use of a hammer, threats to kill, repeated incidents of emotional abuse, including denigrating and belittling comments, and coercive controlling behaviour that kept the mother isolated from society. Again, as this court observed in H v O (Art 13(b) and Domestic Abuse):

“Each case will turn on its own facts. However, in the context of the recognised adverse impact on children of domestic abuse, including the inability of a parent exposed to its pernicious effects to provide for their children’s needs, I am satisfied that in a case involving domestic abuse the question of whether protective measures would be truly effective falls to be considered having regard the dicta of Hale LJ (as she then was) in TB v JB (Abduction: Grave Risk of Harm) [2000] EWCA Civ 337; [2001] 2 FLR 515 at [44] concerning the relevance of the domestic abuse and maltreatment of the taking parent (emphasis added):

“It is important to remember that the risks in question are those faced by the children, not by the parent. But those risks may be quite different depending upon whether they are returning to the home country where the primary carer is the ‘left-behind’ parent or whether they are returning to a home country where their primary carer will herself face severe difficulties in providing properly for their needs. Primary carers who have fled from abuse and maltreatment should not be expected to go back to it, if this will have a seriously detrimental effect upon the children. We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it.”

The protective measures offered by the father, and articulated in the Skeleton Argument on his behalf, are all in the form of undertakings (albeit in her submissions, Ms Baker contended that the father could obtain an order in the terms of a non-molestation order). The offer by the father to vacate the former matrimonial home or, in the alternative, to fund a rental property for the mother and TN, in addition to “the standard proposals for non-molestation, non-prosecution and non-separation undertakings” are, in effect, also undertakings to this court. In support of the efficacy of the undertakings offered by the father to this court, Ms Baker submitted that the court could make recognition of protective measures a pre-condition for the implementation of any return order. She further contended that “Much of what F proposes falls within the 1996 Hague Convention”. I am not able to accept that bold assertion.

In Re Y (A Child) (Abduction: Undertakings Given for Return of Child) [2013] EWCA Civ 129, the Court of Appeal did take the view that undertakings are “measures of protection” for the purpose of the 1996 Hague Convention. In RD v DB [2015] EWHC 1817 (Fam) Mostyn J appeared to suggest that “measures of protection” under Art 11 are limited to orders of the court and do not extent to voluntary undertakings. In the Matter of A (A Child) (Hague Abduction; Art 13(b): Protective Measures) [2019] EWHC 649 (Fam), Williams J considered that a non-molestation undertaking given to this court may qualify as a measure of protection under Art 11 that would be recognised by operation of law under Art 23, relying on Re Y (A Child) (Abduction: Undertakings Given for Return of Child). In AO v LA [2023] EWHC 83,| [2024] Fam 73 Fam, Mostyn J again did not include undertakings within measures of protection which take effect by operation of law under Art 23 of the 1996 Hague Convention. The court did not hear detailed submissions on the point in this case. The point is not dealt with at all the in opinions of the parties’ own Albanian lawyers. Within this context, I am not satisfied that it has been established that the undertakings offered by the father come within the scope of the 1996 Hague Convention and would be automatically recognised by operation of law in Albania under Art 23 of the 1996 Hague Convention.

In terms of the sufficiency of the undertakings offered by the father to address the grave risk the court has identified, the court is therefore left to fall back on the necessarily partial and starkly competing opinions of the parties’ own Albanian lawyers. Before one gets to the detail of the stark disagreements between the lawyers regarding the relevant law in the jurisdiction of Albania, and whilst Mr Payne and Ms Baker submit that the lawyers seem to agree that an English “judicial provision” that imposes clear, defined and enforceable obligations is preferable and will be enforceable in Albania if equipped with an apostille stamp and an official translation, and if it goes through the recognition procedure before a competent Albanian court, it is not at all clear from either report that undertakings, in the technical sense used in this jurisdiction, come within the scope of their respective opinions.

In the foregoing circumstances, I am satisfied that the court has insufficient evidence to satisfy itself in this case on the question of the sufficiency of the protective measures offered by the father in this case. Whilst the father submits that terms could be contained in an Albanian protection order, such an order was refused by the Albanian courts when the mother sought one. In the circumstances, I cannot be satisfied that there are capable of being put in place in this case protective measures sufficient to protect TN from the grave risk of physical or psychological harm or otherwise intolerable situation identified by this court. Accordingly, I am satisfied that the exception under Art 13(b) is established by the mother in this case.

Being satisfied as I am, for the reasons set out above, that the exception under Art 13(b) is established by the mother in this case in circumstances where the court cannot be satisfied that there are capable of being put in place in this case protective measures sufficient to protect TN from the grave risk of physical or psychological harm or otherwise intolerable situation identified by this court, it would not be appropriate to exercise my discretion to make a return order in any event.

In conclusion, I find that, as at the date of the final hearing (and, for the avoidance of doubt, at the date the father’s application was issued) TN was settled in the jurisdiction of England and Wales for the purposes of Art 12 of the 1980 Hague Convention. I am further satisfied that TN is at a grave risk of physical or psychological harm or otherwise intolerable situation if he were to be made the subject of a return order for the purposes of Art 13(b). For the reasons I have given, I am not satisfied that it is appropriate to make a return order in the exercise of my discretion notwithstanding these conclusions. In these circumstances, I dismiss the father’s application. I will ask the parties to submit an agreed draft order accordingly.