Hague Convention: High Court refuses return of young child, finding settlement and grave risk

The High Court Family Division refused a father's application for a return order under the 1980 Hague Convention, finding that both the Article 12 settlement exception and the Article 13(b) harm exception were made out.

Mr Justice MacDonald gave judgment in the High Court Family Division on 15 January 2026, after a hearing on 2 December 2025. The judgment was delivered in private and published on condition that the anonymity of the children and their family is strictly preserved. This report therefore refers only to the father, the mother and the child.

Background

The father applied under the Child Abduction and Custody Act 1984 for a return order under the 1980 Hague Convention. The mother resisted. The child was joined as a party and represented through his Children's Guardian.

The mother accepted the basic criteria for a return order:

• the child was under 16;
• the father had rights of custody and was exercising them;
• the child was habitually resident in Albania immediately before the removal on 31 July 2023;
• the removal to England and Wales was wrongful under Article 3.

The question

The case turned on two exceptions the mother relied on. The first was Article 12: proceedings began more than a year after the wrongful removal, and the child was now settled in his new environment. The second was Article 13(b): a grave risk that return to Albania would expose the child to physical or psychological harm or otherwise place him in an intolerable situation.

The decision

The judge held that both exceptions were made out and that a return order should not be made.

The reasoning

In reviewing the law on immigration status and settlement, the judgment cited earlier authority. In one case, the mother had not arrived, or had since moved about, as a fugitive from justice, and had done nothing to avoid the attention of the Home Office. In those circumstances her immigration position did not prevent settlement within the meaning of Article 12 being established. In In re E (Abduction: Intolerable Situation) [2008] EWHC 2112 (Fam), Moylan J 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. He noted in particular that there was at least one route by which they might acquire the right to reside in this country.

The judgment also reviewed the date at which settlement is judged. In Re N (Minors) (Abduction) [1991] 1 FLR 413, Bracewell J took "now" in Article 12 to mean the date proceedings began. She described that finding as purely academic because it made no material difference on the facts of that case. More recent first instance decisions favour the date of the final hearing. In E v L (Abduction: Settlement) [2021] EWHC 2758 (Fam), Mostyn J reasoned that "now" means now, and that a child who had become settled by trial should not be sent back. In Re G and B (Children), Harrison J said Mostyn J's view may be an outlier but found his analysis persuasive and agreed with it.

Both the mother and the child have outstanding appeals against refusal of their asylum claims. Because no return order was made, the judge did not decide whether a return order can be made and implemented despite G v G (A Child) [2021] UKSC 9. He said any view would be obiter, and noted that the Secretary of State for the Home Department did not intervene.

Sources

• N v N (Art 12 Settlement) [2026] EWHC 21 (Fam), High Court Family Division, 15 January 2026: https://caselaw.nationalarchives.gov.uk/ewhc/fam/2026/21