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R v P [2017] EWHC 1804 (Fam)

Judgment of Theis J dismissing the father’s application made pursuant to the Convention on the Civil Aspects of International Child Abduction 1980 for the return of X (aged 5) to Lithuania.

The mother opposed the father's application for X's summary return to Lithuania. She relied on the "settlement" Art.12 defence and "grave risk of harm" under Art.13 (b), namely that returning X to Lithuania would expose her to physical or psychological harm or otherwise place her in an intolerable situation. The father opposed both grounds. The mother sought to persuade the Court to use its discretion to allow X to remain in England whilst the father sought X's return to Lithuania.

Background
The parties were both born in Lithuania, where they married in 2010. X was born a year later, and the parties separated in 2012.

The mother removed X from Lithuania on 2nd October 2015, following which X lived in England with her mother, her mother's new partner and their child. The mother alleged abusive and harassing behaviour from the father towards her and X. She obtained an injunction against the father in 2014, which was subsequently found to be breached in Lithuanian proceedings.

The father accepted the content of text messages sent to the mother but denied the extent of the allegations and any deliberate breach of the injunction.

The Court had evidence of X's emotional difficulties, alleged to have arisen due to father's behaviour, which had necessitated therapeutic support. There had been short periods of supervised contact between X and her father, although this had ceased in September 2015.

The father took no active steps to reinstate this contact until May 2016, when he applied for enforcement in Lithuania. The mother made a without notice application in England in October 2016. Both applications were stayed pending the outcome of the father's Convention application, which was made in November 2016.

Law
The mother accepted that the removal was wrongful under Article 3 of the Hague Convention, having come to England without the agreement of X's father and in breach of the father's custody rights.

Cannon v Cannon [2004] EWCA Civ. 1330, was endorsed as the leading authority in settlement cases. The definition of settlement is more than mere adjustment to surroundings. The word should be given its ordinary meaning with two constituents: a physical element relating to being established in a community and environment, and an emotional constituent relating to security and stability. In cases where there has been concealment or subterfuge, 'the burden of demonstrating the necessary elements of emotional and psychological settlement are much increased'.

Depriving a child of a relationship with her father was an important factor but did not prevent a child from becoming settled in a new environment: each case must however be considered on its own facts and there should not be an unduly technical approach to the question of settlement (F v. M and N (Abduction) (Acquiescence: Settlement) [2008] EWHC 1525 (Fam)).

The provisions of Art.11 of Council Regulations (EC) No.2201/2003 of the 27th November 2003 concerning jurisdiction and the recognition of enforcement of judgements in matrimonial matters and the matters of parental responsibility (more commonly known as Brussels IIR) were considered, requiring the Court to consider proposed arrangements to secure the protection of a child after the child's return.

In relation to the Art.13(b) defence, the three step approach in Re E was reiterated, namely:

(1)     identify the risks;

(2)     consider the protective measures; and

(3)     in the absence of protective measures, the Court should do the best it can to resolve the disputed issues. 

 

As per Re D [2006] UKHL 51, it was noted that it would not invariably be the case that protective measures were adequate to avoid the risk.

An abducting parent's refusal to return with the child if return is ordered was considered in the light of C v. C (Abduction: Rights of Custody) [1989] 1 WLR, S v. B (Abduction: Human Rights) [2005] EWHC 733 (Fam), [2005] 2 FLR 878 and S v. S [2015] EWHC 2703 (Fam). It was noted that the primary focus of the Court remains on the question of the grave risk of harm or intolerability to the child rather than the conduct of the abducting parent.

Art. 10(b)(i) and Art. 12 of Brussels II R were considered in relation to the question of the Court's discretion along with Re M (Abduction: Zimbabwe) [2008] 1 FLR 251 and Re O [2011] 2 FLR 1307. The definition of the term 'whereabouts' within Art. 10 were described as 'sufficient knowledge to launch an application for the child's return.  In England, it would be sufficient to know the child is in this country in order for that claim to be advanced'.  

Determination
It was determined that the mother intended the relocation to be permanent. The mother had specific requirements when locating a property in which to live, namely proximity to a school and police station. X was enrolled in that school shortly after arrival. She had become fully integrated in that school following some therapeutic support and felt 'safe'. X had a close relationship with the mother's new partner and the new baby. It was acknowledged that the mother's sense of security was also likely to impact on X's sense of stability.

Given the above factors and the length of time that X had lived in England, it was accepted that X was settled in England. The Guardian supported this view but had concerns about the absence of a relationship with X's father and her views towards him. Mrs Justice Theis recognised those concerns but described the previous situation in Lithuania as a 'relatively limited and superficial relationship between X and her father', upon which basis the difference in relationship now was 'relatively limited'.

It was accepted that the mother's anxiety was such that she did not want her plans to be more widely known. However, the father was aware of her imminent wish to relocate to England and although he was not informed that she had done so, he had not taken steps to locate her and there was no 'active concealment'. The 'settlement clock' began to run from the lodging of an application with the Court that will decide the application. There were no settled authorities on this point.

It was deemed more likely than not that the mother would not return to Lithuania if an order was made for X's return. Doing so would result in a separation from her new baby, her partner having lived in England for some time and not consenting to the baby moving to Lithuania. When considering potential protective orders, Mrs Justice Theis noted the father's historical failures to comply with Court orders and his failure to recognise the subsequent harm caused to X.

Should X return without her mother, this would result in a grave risk of psychological harm and place her in an intolerable situation. This was particularly the case given the closeness of her relationship with her mother and her anxieties surrounding her father. A return to her father's care was unrealistic at the present time and it was difficult to imagine any protective measures that could be put in place to assist X with managing separation from her mother.

Mrs Justice Theis declined to exercise her jurisdiction to return X to Lithuania, having considered the longstanding involvement of the Lithuanian Courts with X, the interference with X and the father's Art.8 rights, and X's welfare. It was noted to be 'likely' that the Lithuanian Courts retained jurisdiction under Art. 10 and the continuation of proceedings in Lithuania was a matter for that Court to consider.

It was noted that the Court's conclusion should not be seen as condoning the mother's conduct in wrongfully removing X from Lithuania. The father's application was accordingly dismissed.

Summary by Lyndsey Sambrooks-Wright, barrister, 2 Dr Johnson's Buildings 
 
________

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published.  The judgment, the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

No: FD16P00608
Neutral Citation Number: [2017] EWHC 1804 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice

3rd March 2017

Before:

MRS. JUSTICE THEIS
(In Private)

- - - - - - - - - - - - - - -

B E T W E E N :

R
 Applicant
- and -
P Respondent
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Transcribed by Opus 2 International Ltd.
(Incorporating Beverley F. Nunnery & Co.)
Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel:  020 7831 5627     Fax:  020 7831 7737
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- - - - - - - - - - - - - - -

MR. A. PERKINS (instructed by Hornby & Levy) appeared on behalf of the Applicant.
THE RESPONDENT appeared in Person.
MR. M. GRATION (instructed by CAFCASS Legal) appeared on behalf of the Guardian.
- - - - - - - - - - - - - - -

J U D G M E N T
MRS. JUSTICE THEIS:

Introduction

1. These proceedings concern the father's application for the return of X, who is now five and a half years of age, to Lithuania pursuant to the Convention on the Civil Aspects of International Child Abduction 1980 (hereafter referred to as the "Convention"). 

2. X has been here with her mother since 2nd October 2015 and lives with her mother, her mother's new partner and their child born in December 2015. 

3. The mother accepts that she came here without the agreement of the father and that removal was wrongful.  The mother opposes X's summary return to Lithuania on two bases: Firstly, that X is settled here under Art.12 of the Convention and, in the event that the court makes that finding, it should not exercise its discretion to order X's return.  Secondly, if she is returned, there would be a grave risk of physical and/or psychological harm or X will be placed in an intolerable situation and, again, if the court makes that finding, it should exercise its discretion not to return X. 

4. The father takes issue with both defences raised by the mother.  Mr. Perkins submits on his behalf the evidence does not establish X is settled within the terms of Art.12 and the evidence does not reach the threshold required for the Art.13(b) defence to succeed.  In any event, even if the court makes those findings, the court should exercise its discretion in the circumstances of this case to ensure that X is returned back to Lithuania. 

5. X is a party to these proceedings and is represented by her Guardian, Ms. Odze. 

6. One of the difficulties in this case has been the fact that the mother has not had legal representation.  She is ineligible for legal aid, as her partner is working and supporting them.  She has had the assistance of a McKenzie Friend and an interpreter provided by the court, but, with a bundle of over 350 pages, skeleton arguments and an authorities' bundle, it has not been straightforward for her. 

7. Despite these difficulties, I am satisfied that she has demonstrated a good understanding of the relevant issues assisted in particular by the clarity with which Mr. Gration, on behalf of X, has set out the position in both of his written documents (not only the document that was filed at the start of this hearing, but also the closing document).  I am very grateful to both counsel for the steps that they have taken to ensure that this mother has been able to participate fairly in these proceedings. 

8. This matter was listed for two days.  It took most of the first day to ensure that the mother understood the issues to be addressed and the ambit of any oral evidence the court was going to hear. 

9. On that first day, I refused her application to look at some short video clips of what she said was the father's behaviour towards her before January 2014.  I did allow her to adduce some social media messages by the father and his friends in July 2015 and, having identified the relevant passages, the parties were able to agree a translation of those relevant passages and they were put before the court. 

10. Both the mother and the father and Ms. Odze gave oral evidence on the second day of the hearing.  I then made directions for the filing of written submissions, first, by Mr. Perkins and Mr. Gration, and then by the mother with a sufficient time period in between to ensure that the mother had the opportunity to be able to consider what had been set out in writing by Mr. Perkins and Mr. Gration.  I am giving this ex tempore judgment with the mother present, so she has the benefit of the interpreter.

11. What I will do is set out a summary of the background, first, followed by the relevant legal framework, consider the submissions made by the parties and set out the decision I have reached. 


The Background
12. The parents are both aged thirty-three and were born in Lithuania.  They married in 2010 and just over a year later, X was born also in Lithuania. 

13. According to the statements that have been filed by the mother, the father's attitude towards her changed after their marriage when, according to her statements, he became abusive and aggressive.  She alleges he was violent towards her when she was pregnant with X and when X was a small baby.  She describes in her statements the father did not like her breastfeeding X and she was forced to do so in a separate room, or at her parents' home.  

14. The mother reported the father's behaviour to the police in June 2012, but the police took no action.  The mother also alleges that, on one occasion, the father was violent to X describing him as "flicking" X hard on her forehead.  It was this event, the mother says, that caused her to separate from the father and they separated in August 2012.  At that stage, X was fourteen months of age. 

15. Although the father suggests that he helped the mother move out, the mother describes the father's reaction to her decision to separate as being angry, abusive and unpredictable.  She says following their separation that he harassed her on a number of occasions, followed her to her place of work and to her parents' home where she was staying.  She said that he constantly made threats that he would kidnap X and she described a pattern in her statements of his behaviour where the father alternated between begging and apologising and then being angry and abusive. 

16. In the documents from the Lithuanian authorities there are some texts from the father on the mother's mobile phone in the middle to latter part of 2012 that support her account.  These are just by way of example:

• On 5th June 2012, it is reported that the father said in a text:

"I spoke just ugly bad words.  Everybody understands they are ugly.  I do not go deep into their significance.  I do not make excuses.  They cannot exist. Nevertheless, I do not do it deliberately and I did not apply them in their direct sense.  I just said ugly words. I was panic, pain and hysteria stricken."

• In November 2012, he says as follows:

"Forgive me.  I promised you that.  I do not know how to compensate the trauma suffered by the mother because of my hysterias.  I was unable to appreciate and respect her."

Those indicate the ranges of emotions that were being expressed by the father.  Albeit at a time close to the breakdown of the parents' relationship, but are perhaps indicative of the way the father has behaved. 

17. The mother states the parents went to see a psychologist about the father's mental health in about 2013 because of her concerns about his unpredictable behaviour, which she was concerned may be linked to possible steroid abuse. 

18. After a series of unpleasant instances described by the mother, including the father and his brother turning up at the gym where she worked when the father assaulted the mother and the brother is reported to have filmed women getting changed, she again involved the police in Lithuania. 

19. Although the court made an injunction in February 2014 to prevent the father going to X's nursery or the mother's home or work, it appears he breached this order.  The court found at a subsequent hearing the father had attended X's nursery and they fined him. 

20. The mother said that the breaches were continuous including, she alleges, placing a tracking device in her car so that he could locate her.

21. There is some support from the information from the Lithuanian authorities that the mother's assertion the father harassed her following their separation.  In July 2013, the Administrative Commission at Kaunas City Council found that the father had failed to comply with the statutory procedures, that he had changed the locks to the parties' flat in Kaunas and failed to give the key to the mother.   He was given a fine for that action. 

22. In these proceedings the father has denied any violence, inappropriate, controlling or abusive behaviour.  He accepts that he breached the court injunction forbidden him from going to X's nursery, but seeks to say that he did not know that the order was still in force; a position which he maintained in his oral evidence to this court, even though there had been a finding otherwise within the Lithuanian proceedings. 

23. The father denies that he suffers from any mental health issues, but the mother has produced some documentation from the Centre for Mental Health in Kaunas confirming that the father attended a clinic on a number of occasions in late 2008 and May 2013 and was diagnosed with what was called "adaption disorders". 

24. The impact of the parents' relationship on X is seen in a number of documents.  In July 2013, Dr. Bieliauskiene recorded that X was afraid to leave the mother, that she cries and claws the mother's neck.  At night, X checked the mother was nearby.  She did not want to leave the mother's knee and became more infantile.  The doctor describes: "eye twitching after meetings with the father.  She suffers from headaches, nausea and even fever" and advised the mother "to avoid repetitions of stress situations". 

25. In Lithuania, the parties have been involved in litigation almost continuously since the time of their separation in 2012.  Those proceedings have related to not only their divorce proceedings, but also the financial aspects on the breakdown of their relationship and also contact issues concerning X.  The parties issued cross-applications in January 2014, which led to the hearing on 13th February 2014.  On that occasion, the court noted:

"There is a strong mutual conflict between the parents of the minor child, there are systemic conflicts in the presence of the child and it violates the child's interests". 

The same judgment also refers to a "behavioural and emotional disorder and tic" which had been diagnosed in X (who at that stage was about two and a half) and suggested that stressful situations should be avoided. 

26. As I have said, the order of 13th February 2014 prevented the father from attending at X's nursery and dealt with the mother's relationship with the father.  The court at that hearing required X to attend three sessions with a psychologist (without either parent) in February and March 2014 and then three sessions of contact with the father in the presence of the psychologist.  The mother was to fund the first three sessions and the father the second three sessions. 

27. The parents were also required to meet with the psychologist on four occasions in late April and early May 2014, but, according to the mother's submissions to the court, the father was nervous, said that he loved the mother more than X and admitted that he had threatened suicide.  It seemed that he had stated, according to the mother, that he would no longer attend the appointments with the psychologist. 

28. The matter returned to the court on 6th May 2014 for the substantive hearing in relation to the regime for contact between the father and X. The court made a detailed order dividing the parties' property, but also set out a detailed order regarding X's contact.  It included the following regime:

• From 12th May 2014 for a period of twelve weeks, contact was to be between X and the father for two hours twice a week in the presence of a psychologist.  It was anticipated on that first stage that twenty-four meetings must take place. 

• After those meetings, contact for eight weeks between X and the father for two hours twice a week, once in the presence of a psychologist and once unsupervised.  Eight meetings to take place with the psychologist and eight without. 

• After thirty-two meetings with the psychologist and eight meetings unsupervised, contact between X and the father unsupervised every Tuesday and Thursday from 5pm to 7:30pm and on alternate Saturdays from 10am to 7:30pm. 

• The parents were required to meet the cost of the psychologist jointly and equally.

29. For reasons which the parents on the face of the documents the court has disagree, contact did not take place between the father and X entirely in accordance with the May 2014 order.  Although the contact supervised by the psychologist took place until X left Lithuania on 2nd October 2015, from what I can understand the periods of unsupervised contact did not take place.  A letter from the Public Institution Psychological Support and Consulting Centre in Kaunas, dated 28th November 2016, states that the compliance with the order was as follows:

• There were five meetings between the father and X and four meetings between the parents in Spring 2014.

• The father did not apply to enforce the May 2014 order until September 2014.

• From September 2014 until September 2015, there had been thirty-eight further meetings of one hour that had taken place between the father and X, as I understand it, in the presence of the psychologist. 

The last time X saw her father was on 21st September 2015. 

30. In fact, the mother had appealed against the May 2014 order.  That appeal took place in early 2015 and was unsuccessful. 

31. The appeal ruling that is in the papers sets out a useful background summary to the dispute between the parents, which, to an extent, supports the mother's version of events:

"The father's behaviour during a family conflict does not prove the father's efforts to solve the conflicts in a constructive way, but, on the contrary, it proves his intention to go deep into absolutely insignificant details and not to solve the problem.  The court concluded the father's behaviour with the mother (continuous prying out of the same things, harassment, humiliation, etc.) can be assessed as psychological violence and is improper in respect of the mother and the father did not prove any concrete circumstances demonstrating improper execution of marital duties by the mother…the actual reason for the breakdown of the marriage between the parties was an improper attitude of the father towards the family, his disrespect to the mother and systematic application of psychological violence in respect of the mother."

32. On 6th September 2014, there was an incident in a trampoline park when the father was unexpectedly there - it was a public place, so he was entitled to be - but he engaged in conversation with X.  It resulted in the father refusing to return X to the mother, a physical struggle followed as a result of which X had to be taken to hospital.

33. On 21st October 2014, the father was convicted by a criminal court of breaching the order forbidding him from going to X's nursery; he entered a plea of guilty and was fined. 

34. The case returned to court on 19th January 2015 to consider the incident in the trampoline park on 6th September 2014.  It appears the court found that the father:

"avoided giving back the daughter to the mother and pressed her strongly, the child was returned to the mother only after applying physical force to the father…there is some date in the case that the mother sought medical advice because of abdominal pains of her daughter on the next day after the conflict."

35. The court noted that this incident in relation to X:

"caused fear and psychological discomfort to the daughter and had a negative impact on healthy development of the child.  The father recognises that he came to the daughter when he saw her, spoke to her, kept her and went to play to another trampoline.  He also recognises that the mother asked the daughter to go with her.  The father may communicate with the daughter with participation of the psychologist only according to temporary safeguards; moreover…it was forbidden to the father to enter the educational establishment of his daughter…the minor daughter feels huge emotional tension between the parents and it causes big stress and negative emotions to her.  As the father knew all the circumstances related with the determined order of communication…he should have avoided the conflict on 7th September 2014 and behaved properly in the presence of the child."

36. Litigation continued, and the parents continued to blame one another until the mother removed X from Lithuania on 2nd October 2015.  Since then, in relation to the Lithuanian proceedings, it appears that there was then a gap when the father was not having contact and was not taking any active steps to seek any contact between October 2015 and May 2016.  It remains unclear on the papers as to why there was this gap and why no active steps were taken to be able to pursue his position if he believed that X was within the courts in Lithuania. 

37. What does appear to have happened is that, on 13th May 2016, the father issued an application - some seven months after he had last seen X - to enforce the order that had been made on 6th May 2014.  Those proceedings in Lithuania, by virtue of an order dated 17th November 2016, have been stayed pending the outcome of these proceedings. 

38. The father last saw X on 21st September 2015.  The documents in the bundle show he cancelled a number of contacts after that prior to X's removal from the jurisdiction on 2nd October 2015, but in his oral evidence was unable to remember why he had done so apart from a vague reference to work. 

39. The mother made a without notice application in this jurisdiction in October 2016, which was considered by Pauffley J in an order dated 5th October 2016.  She made directions for the father to be served with the application the mother was making and the statement she had filed in support, but those proceedings have since been stayed pending the outcome of the father's Convention application. 

40. The father's application under the Convention was issued on 1st November 2016.  Disclosure orders were made by Francis J on 2nd November 2016 and the father's solicitors were informed of the whereabouts of the mother on 3rd November 2016.  An inter-parties hearing took place before Russell J on 16th November 2016 and before Bodey J on 12th December 2016.  It was at that later hearing that the matter was listed for a two day hearing in early February 2017.  The answer filed on behalf of the mother indicated that she was relying on the "settlement" Art.12 defence and "grave risk of harm" under Art.13 (b). 

41. The two day hearing was initially listed on 8th and 9th February, but had to be adjourned due to a combination of matters: Firstly, lack of court time due to a previous case overrunning; and, in any event, the late filing of detailed skeleton arguments on the mother who was then acting in person, which gave her insufficient time to be able to consider them.

42. In the order dated 8th February 2017, Her Honour Judge Robertshaw made detailed directions identifying the issues between the parties; and, at para.6 of that order, identified the areas where the parties were likely to be required to give oral evidence.

43. As I have said, X was joined as a party to the proceedings and Ms. Odze conducted her enquiries and produced a detailed report dated 31st January 2017.  In that report, she sets out her conclusions regarding settlement.  She concluded that:

"X was physically settled and to an extent has achieved a sense of psychological settlement in the UK." 

Her reservations were in relation to the lack of a relationship between X and the father and the negative views she had about him. 

44. Both parties have filed a number of witness statements that are in the trial bundle which the court has carefully considered as well as the oral evidence that it heard. 


The Legal Framework
45. Article 3 of the Hague Convention provides as follows:

"The removal or the retention of a child is to be considered wrongful  where -

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

46. As I have said, there is no issue in this case that the removal of X from Lithuania by the mother on 2nd October 2015 was in breach of the father's rights of custody and was therefore wrongful.  This was conceded by the mother when she had legal representation and recorded in the order made by Russell J on 16th November 2016. 

47. Article 12 provides that, where a child has been wrongfully removed or retained in terms of Article 3, the court should order the return of the child, even when "proceedings have been commenced" after the period of one year unless the court is satisfied the child is "settled in its new environment".  The full provision of 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."

48. The leading authority on settlement remains the case of Cannon v. Cannon [2004] EWCA Civ. 1330, [2005] 1 FLR 169.  In Cannon, Thorpe LJ stated as follows:

"What is the degree of settlement which has to be demonstrated?  There is some force, I find, in the argument that legal presumptions reflect the norm, and the presumption under the Convention is that children should be returned unless the mother can establish the degree of settlement which is more than mere adjustment to surroundings.  I find that word should be given its ordinary, natural meaning and that word 'settled' in this context has two constituents.  First, it involves a physical element of relating to being established in a community and an environment. Secondly, I find that it has an emotional constituent relating to security and stability."

49. In cases where there has been concealment or subterfuge, which is what the father suggests applies here, the Court of Appeal has held that "the burden of demonstrating the necessary elements of emotional and psychological settlement is much increased".  In Cannon, Thorpe LJ stated at para.53 that:

"A broad and purposive construction of what amounts to 'settled in its new environment' will properly reflect the facts of each case, including the very important factor of concealment or subterfuge that has caused or contributed to the asserted delay."

50. In F v. M and N (Abduction) (Acquiescence: Settlement) [2008] 2 FLR 1270, [2008] EWHC 1525 (Fam),  Black J (as she then was) resisted the development for an unduly technical approach to the question of settlement (para.66) and she makes clear that, according to Cannon, each case must be considered on its own particular facts (para.68). 

51. In that case  Black J took into account the fact that, as a result of the mother's actions, the child had been deprived of her relationship with her father, and, whilst recognising its importance, it did not in her view prevent the child from becoming settled in her new environment as all the other indicators were that the child had become settled (although it is right that in that case she made a return order, albeit suspending it to enable the mother to make the necessary applications within the court in Poland). 

52. The other defence relied upon by the mother is Art.13(b), which provides as follows:

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." 

I pause to say that the latter part of that is not being pursued in this case. 

"In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

53. This needs to be read with the provisions of Art.11 of Council Regulations (EC) No.2201/2003 of the 27th November 2003 concerning jurisdiction and the recognition of enforcement of judgements in matrimonial matters and the matters of parental responsibility (more commonly known as Brussels IIR), which requires the court to consider the arrangements that are proposed to secure the protection of a child after the child's return.  It states in subparagraph (4):

"A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."

54. The only other relevant part of Art.11 is subparagraph (8), which states as follows:

"Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child."

Mr. Perkins, in his submissions, makes it clear that is an option, if this court does not order the return of the child, and that may be an application the father will make in Lithuania if the Lithuanian Court retains jurisdiction, so the proceedings in relation to this child are likely to continue.  

55. The law in relation to Art.13 (b) is set out in the decisions of the Supreme Court in Re E (Abduction: Custody Appeal) [2011] 2 FLR 758 and Re S (A child) (Abduction: Rights of Custody) [2012] 2 FLR 442.  In his helpful submissions, Mr. Gration set out a summary of paras.32 to 35 of Re E and, as I understand it, Mr. Perkins in his submissions has not taken any significant issue with that analysis.  Mr. Gration's summary is as follows:

"(1) The standard of proof is the ordinary balance of probabilities. The burden of proof rests upon the person opposing the child's return. It is for that person to produce evidence to substantiate the defence raised.

(2) There must be a grave risk of the harm alleged to the child. 'Grave' qualifies the 'risk' of harm rather than the 'harm' itself but there is a link between the two concepts. The risk to the child must have reached a such level of seriousness as to be characterised as 'grave.' A relatively low risk of death or serious injury might properly be qualified as 'grave' whereas a higher level of risk might be required for other less serious forms of harm.

(3) The situation faced by the child on return depends crucially upon the protective measures which could be implemented so as to avoid the risk that the child will be harmed or otherwise face an intolerable situation.

(4) Inherent in the Convention is the assumption that the best interests of children as a primary consideration are met by a return to the country of their habitual residence following a wrongful removal. That assumption is capable of being rebutted only in circumstances where an exception is made out;

(5) Intolerable is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'. Those words can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate, including exposure to the physical and psychological harm done to a parent;

(6) The source of the risk of harm is irrelevant such that it may stem from the subjective perception of a parent which could have intolerable consequences for the child;

(7) If the risk is serious enough the court is not only concerned with the child's immediate future as the need for protection may persist."

56. In Re M (Children) [2016] EWCA Civ. 942, the Court of Appeal recently allowed an appeal from a decision of Russell J which had been reported at first instance at DM v. KM [2016] EWHC 1282 (Fam) in which the Judge refused to order the return of children to America on the basis of her findings that the mother had suffered domestic violence and her conclusion that nothing could be put in place in New Jersey to protect her. 

57. The Court of Appeal determined that the Judge had not conducted a proper evaluation of the protective measures and had approached the case in the wrong way.  The Court of Appeal reiterated the Re E test and the three step approach, namely:

(1) to identify the risks;

(2) consider the protective measures; and

(3) in the absence of protective measures, the court should do the best it can to resolve the disputed issues. 

58. In itself, this reiterates the speech of Baroness Hale in the House of Lords in Re D [2006] UKHL 51.  Baroness Hale made it clear that the decision is whether protective measures are adequate, but leaving open the possibility that this may or may not be the case.  At para.52, she said as follows:

"In this case, it is argued that the delay has been such that the return of this child to Romania would place him in an intolerable situation.  'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'.  It is, as article 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect.  Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there.  In many cases this will be sufficient.  But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so.  In Hague Convention cases within the European Union, article 11.4 of the Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003) expressly provides that a court cannot refuse to return a child on the basis of Article 13(b) 'if it is established that adequate arrangements have been made to secure the protection of the child after his or her return'.  Thus it has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case.

No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm."

59 I have also been referred to the authorities which consider how the court should deal with what is said to be in this case an abducting parent's refusal to return with the child if that is what is ordered by the court.  In the case of C v. C (Abduction: Rights of Custody) [1989] 1 WLR 654 at 661, Lady Justice Butler-Sloss made the following observations:

"The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him.  The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm.  I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back.  In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child.  Is a parent to create the psychological situation, and then rely upon it?  If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return.  It would drive a coach and four through the Convention..."

60. Mr. Gration has submitted that the more recent authorities have, perhaps, placed a slightly more nuanced position in relation to this issue.  In S v. B (Abduction: Human Rights) [2005] EWHC 733 (Fam), [2005] 2 FLR 878, Sir Mark Potter held at para.49 that:

"The principle that it would be wrong to allow the abducting parent to rely upon adverse conditions brought about by a situation which she has herself created by her own conduct is born of the proposition that it would drive a coach and horses through the 1985 Act if that were not accepted as the broad and instinctive approach to a defence raised under Article 13(b) of the Convention.  However, it is not a principle articulated in the Convention or the Act and should not be applied to the effective exclusion of the very defence itself, which is in terms directed to the question of risk of harm to the child and not the wrongful conduct of the abducting parent.  By reason of the provisions of Articles 3 and 12, such wrongful conduct is a 'given' in the context of which the defence is nonetheless made available if its constituents can be established."

61. What Mr. Gration submits that Sir Mark Potter was drawing attention to there is that the court's focus should be on the question of risk of harm to the child, which is what it is directed to do under Art.13 (b), rather than on the conduct of the parent that may be a wholly or contributory causative effect of that harm. 

62. This issue was considered more recently by MacDonald J, which was a decision that was post the case of Re E in the Supreme Court, and it is reported at S v. S [2015] EWHC 2703 (Fam), [2016] 2 FLR 1102.   MacDonald J considered this issue at paras.42 and 47 of that judgment as follows:

"(42) The Supreme Court has endorsed clearly the principle that where it is established that the situation on return would expose the child to a grave risk of harm or otherwise place him or her in an intolerable situation then the source of the grave risk of harm or intolerable situation is irrelevant.  This must be consistent with the status of Art 13(b) as a narrow welfare exception to the general obligation under Art 12, which narrow exception is designed to legislate for those very limited number of cases where an order for return would result in a grave risk of physical or psychological harm or would otherwise place the child in a situation that is intolerable to that child.  To take the present case as an example, were the court to conclude that a return to Holland would expose S to a grave risk of physical or psychological harm or would otherwise place S in an intolerable situation by reason of his being separated from his mother and placed in care in Holland, from S's perspective whether that separation, and all that flows from it, is due to the mother's contumelious attempt to frustrate the Convention process or an involuntary inability to travel or something between those two extremes is neither here nor there for S.  The risk of harm is grave or the situation intolerable for S either way.

(47) Thus, accepting the imperative need to maintain fidelity to the aims of the Convention, it is important in cases where a parent refuses to return that, in determining whether a defence under Art 13(b) is made out, the primary focus of the court remains on the question of the risk of harm or intolerability to the child rather than the conduct of the abducting parent.  Within this context, it is important again to bear in mind that Art 13(b) looks to the situation as it would be if the child were returned forthwith to his or her home country and that the situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home.  The significance for the situation the child will face upon return of a parent's refusal to return must in each case be evaluated in the context of the protective measures that can be put in place to mitigate the impact of the same."

63. As a result of that, Mr. Gration submits the court's focus when considering Art.13 (b) must be upon the child and not on the conduct of the removing parent; and, if a parent states that they will not return with the child, the court is entitled to consider the reasons for that refusal.  However, what the court must remain focused on is the defence and decide whether or not it is established on the basis of the circumstances that will await the child upon return.  If it appears to the court that the child will return without the parent that has removed them, it is against that background that the application and the defence must be considered.  Whether or not that situation will give rise to a grave risk of harm or intolerability, as set out under Art.13 (b), must be evaluated in the context of the protective measures that can be put in place to mitigate the impact upon the child of a situation that they will face upon return. 

64. Mr. Perkins in his written closing submissions refers to what Butler-Sloss LJ says in C v. C, but really takes issue in that it was not apparent to him when he considered the decision of Sir Mark Potter and  MacDonald J that they had departed in any significant way from what Butler-Sloss LJ said in C v. C. 

65. In his oral submissions this morning, Mr. Perkins made the point that really it is for the mother to discharge the burden that is upon her in relation to the Art.13 (b) defence. His submission is, in effect, that she has insufficiently discharged that burden to the extent that it is demonstrated so the court can be satisfied that she would not return with X. 

66. I consider that the court has to remain entirely focused on what Art.13 (b) says, namely the focus is on the harm and the intolerability for the child; and, whilst of course the court would factor in the circumstances that arises in, the focus must be on the terms of the Convention in particular as it has recently been elucidated on by the Supreme Court in the two cases that I have referred to. 

67. Finally, the court has been referred to the relevant parts of Art.12 of Brussels II R.  The relevant part for the consideration of this case is Art.10(b)(i) which, in effect, says as follows:

"In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and…

(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained.

(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);

(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention."

68. This issue is relevant in the context of the father's submissions that, if the court gets to the stage where it is exercising its discretion whether to return X to Lithuania or not, an important consideration in that is the fact that the Lithuanian Court retains its jurisdiction in relation to X and Mr. Perkins submits that it is a significant aspect to be factored in in the exercise of the court's discretion. 

69. What Art.10 provides is that, where there has been a wrongful removal or retention, the court of the child's habitual residence immediately before the removal or retention can retain their powers to make orders in relation to the child and no other court can make orders until certain conditions are met.  Under Art.10 (b) (i), the Lithuanian Court would lose its power to make orders in relation to X if X has lived in England for one year after the father has or should have had knowledge of her whereabouts.  X is settled in England and, within a year after the father has had or should have had knowledge of her whereabouts, he has not lodged an application for her return to Lithuania with the competent authorities in this country. 

70. There is no authority that has determined what should be given to the term "whereabouts" in Art.10.  The Oxford English Dictionary has a number of suggestions depending on whether it is used as an adverb or a noun.  Used as an adverb, it is "where or approximately where"; but when used as an noun, it is "the place where someone or something is" and it goes on to give further detail about that in terms of location, position, site, place, situation, etc.  So more focused than perhaps it is when being used as an adverb. 

71. In considering the context in which the term is used in Art.10, namely "to preserve jurisdiction following a wrongful removal or retention until such time as a parent has been able to exercise their right to seek the child's return", in that context it could be said that "whereabouts" denotes sufficient knowledge to launch an application for the child's return.  In England, it would be sufficient to know the child is in this country in order for that claim to be advanced. 

72. The final matter in the legal framework is the well-trodden path in relation to discretion so that, even if a child has been here in the requested State for more than a year and the court concludes that the child is settled under Art.12 or that the Art.13(b) defence is established, a discretion still exists for the court to order the child's return to the State of habitual residence. 

73. The leading authority is the House of Lords authority in the case of Re M (Abduction: Zimbabwe) [2008] 1 FLR 251, albeit that such a conclusion in the exercise of the court's discretion under Art.12 if the court finds a settlement case would be unusual.  Baroness Hale at para.31 states as follows:

"…article 12 does envisage that a settled child might nevertheless be returned within the Convention procedures… It would be consistent with all the other exceptions to the rule of return. It would avoid the separate and perhaps unfunded need for proceedings in the unusual event that summary return would be appropriate in a settlement case. It recognises the flexibility in the concept of settlement, which may arise in a wide variety of circumstances and to very different degrees. It acknowledges that late application may be the result of active concealment of where the child has gone. It leaves the court with all options open. Furthermore, the difference between the two solutions is by no means as great as is sometimes assumed. This depends upon the scope of the discretion to be exercised both within and without the Convention procedures."

74. There is also reference to Cannon v. Cannon in Re M, where Baroness Hale endorsed a passage by Thorpe LJ in Cannon, which again acknowledges the position in relation to welfare where the court has found settlement. 

75. Baroness Hale in Re M declined to give much guidance as to the exercise of the discretion when the court must consider whether or not to order a return.  She stated at paras.43 and 44 as follows:

"In cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large.  The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare.  I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word 'overriding' if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

The Convention itself has defined when a child must be returned and when she need not be.  Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously.  The extent to which it will be appropriate to investigate those welfare considerations will also vary.  But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be."

76. Finally, at para.47, Baroness Hale says in relation to settlement cases:

"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."

77. In Re O [2011] 2 FLR 1307, the Court of Appeal in finding "overwhelming" reasons to refuse a summary return after a little over 12 months of wrongful retention stated that, in relation to Hague policy considerations, they were "by no means irrelevant in exercising the discretion that arises in a settlement case, but their relevance is strictly as a part of the whole picture, including welfare".

78. Once discretion is at large welfare and policy issues are relevant and the weight to be attached to each is a matter for the Judge, albeit that the presumption must be in favour of allowing a settled child to remain in this jurisdiction given the manner in which Baroness Hale frames the matter in Re M. 


The Submissions of the Parties
79. One of the first issues the court needs to consider is what the mother's intention was when she came here with X on 2nd October 2015.  In her written evidence, the mother states it was a permanent relocation.  In her most recent statement, she states:

"I did not inform the father of X's removal from Lithuania because I was scared that he would do everything to destroy our lives.  I fear that he will look for us in the UK and start persecuting me and my daughter as he did in Lithuania."

80. This was supported by what she said in her oral evidence concerning the discussions with her partner about the property that he should look for them to live in here and, in particular, her particular requirements that the property should be very close to a police station. 

81. Mr. Perkins submits other evidence at the time does not support what the mother now says.  He relies on the mother's email to X's nursery on 5th October 2015 that requests a maternity leave form which refers to X having a "holiday" with her, which was interpreted as such by the nursery as, in their email to the father on 3rd February 2016, they refer to the mother having made "an application for a holiday" where I do not think there is any evidence to suggest that was actually what the mother was making.  The application that she was making was in relation to her maternity leave.  He also relies on a form which indicates the mother's maternity leave finished on 3rd February 2016.  The documents record the mother told the psychologist in Lithuania at the relevant time that she "is away". 

82. Mr. Perkins submits that the mother's explanation in her oral evidence that she was not being frank with the nursery in October 2015 as she feared information leaking out did not stand up to scrutiny as the nursery had, in fact, been protective of the mother in the past and needs to be looked at in the context of the mother now realising the need to demonstrate the move in October 2015 should be a permanent one. 

83. Mr. Gration on behalf of the X draws the court's attention to the relevant parts of the mother's written evidence, as well as to her oral evidence, when she gave details of her plans to move to England after an incident which she said was staged by the father to make it look like she had run him over.  The mother described her partner here identifying and renting a property for them to live in prior to her departure to come here in October.  It was a property that was to meet the mother's requirements of being close to a school and a police station, which, as Ms. Odze's confirmed, was the position when she gave her evidence.  Although X's place in her school was only applied for the day before she started in early October, the property had in fact been chosen due to its closeness with this particular school. 

84. Depending on what conclusion I reach about the mother's intention, the so-called "settlement clock" starts to run from either 2nd October 2015 or 3rd February 2016.  If it is the earlier date, Mr. Perkins raised the issue in his written submissions as to what is meant by the commencement and the proceedings in Art.12.  There is no authority on this point.  He submits it is when the father lodged his "properly completed application on 27th September 2016".  The child had been here for less than a year. 

85. However, Mr. Perkins frankly acknowledges that academic opinion, such as in Lowe, Everall and Nicholls: International Movement of Children (2nd Edition) support the relevant date as being the issue of the court process, not the submitting of the application.  The father's application was issued here on 1st November 2016. 

86. Mr. Gration submits that there is a logical rationale to the date being the lodging of the application with the court that will decide the application.  Lodging of an application with a Central Authority does not, by itself, commence any proceedings.  There is no guarantee proceedings will in fact be commenced by the Central Authority in the requesting state, for example further information may be requested or there may even be a refusal to pass the request on.  Similarly, even if the request is passed on to the Central Authority in the receiving State, they may ask for further information or decline to commence proceedings.  Article 12 requires the date to be readily ascertainable otherwise its practical operation will be compromised. 

87. Turning to the issue of whether X was settled in her new environment on 1st November 2016, if I do reach the conclusion that it was a permanent removal on 2nd October 2015, the mother states in her written evidence the child has settled here.  She feels safe, has done well at school, has a close relationship with her partner and the new baby.  She acknowledges X has required some therapeutic support through the school which has reduced her levels of anxiety.  This, she says, has been caused by her fears relating to her father.  In her oral evidence, she described X's feelings of being "more secure here" and gave me somewhat graphic illustration of X's increased confidence in being able to walk without holding her mother's hand, which prior to that had been her position. 

88. Mr. Perkins submits that, in considering the question of settlement, the court should put the mother's position under increased scrutiny given her subterfuge involved in her clandestine removal of X in October 2015.  He concedes there are a number of matters that support a conclusion that, as at 1st November 2016, X was physically settled in England.  He submits, however, that she is not emotionally settled due, in particular, to the loss of the relationship with her father. 

89. School reports and the mother's written evidence refer in May 2016 to the mother requesting help for X as she was having nightmares.  It is suggested this may be linked to the proceedings that were taking place in the Lithuanian Court.  The support X required did not start until September 2016 so, submits Mr. Perkins, the cause of her unsettled behaviour is irrelevant.  She could not be described as being settled emotionally as at 1st November 2016 as she was still requiring that support. 

90. He further submits that the mother's behaviour in this case amounts to concealment as she did not disclose her whereabouts to the father or any of the relevant authorities in Lithuania.  When she did provide information, there was some delay.  She continued to be in breach of a contact order made on 6th May 2014 and has taken no active steps herself to vary that order in Lithuania, despite taking active steps in subsequent court proceedings.  In addition, she failed to respond to emails sent by the father seeking information about X. 

91. Mr. Gration on behalf of the Guardian submits that X was physically settled in England by 1st November 2016.  She had been living in a stable consistent home in which she had her own room.  She has been attending school since 7th October 2015 where she is doing extremely well and has a variety of friends at school and in the community and undertakes a number of activities. 

92. Ms. Odze considered that X was psychologically settled.  X described herself as feeling "safe".  She likes her home and feels secure and stable there, although Ms. Odze considered it is likely to be contributed to the mother feeling stable and secure here too.  Ms. Odze's concerns have focused on X's emotional settlement in the context where she does not have any relationship with her father and holds a negative view of him. 

93. In his written submissions, Mr. Gration stated that in her oral evidence Ms. Odze presented what he described as a more nuanced view when she said as follows:

"There are elements of emotional settlement that are met.  She likes her school, likes her friends, has a park nearby that she likes to play in, visits her Godmother.  These are huge elements of emotional settlement."

Then a little later, she said:

"There is a small part of emotional settlement that is not met.  It is an important part, but one piece of the puzzle.  I am not diminishing its importance.  It is part of the emotional life of this child.  There are lots of things about her emotional settlement that are met, but it is regrettable that following the long history she does not have a relationship with her father."

94. Turning to the question of Art.13 (b), the court needs to evaluate the evidence as to whether the mother would return with X or not, whether the mother can rely on her own refusal to return, and whether such circumstances would place X at grave risk of harm or in an otherwise intolerable situation were she to return to Lithuania without her mother, and to what extent protective measures can be put in place that would safeguard the risks identified. 

95. In her written evidence the mother stated that she would not return with X in large part due to the fact that her partner would not allow her to take the baby with her, but also contributed to the fact that she said she does not feel safe in Lithuania as a result of what she says has been the abusive behaviour by the father. 

96. In her oral evidence, in answer to questions from Mr. Perkins, she indicated that she would not let X return to Lithuania alone leaving open the question that she would return with her.  However, when questioned further on this issue by Mr. Gration, she suggested that she would not return and could not suggest anyone else who could return to Lithuania with X.  If the mother did not return with X, the only other option is for X to do so in the care of her father.  There is no evidence before the court of any other option. 

97. Mr. Perkins submits it is likely the mother would return and, in any event, by the terms of the order made in the Lithuanian proceedings, if the mother did not return, the obligation would be on the mother to make the necessary arrangements such as, for example, placing X with the maternal grandparents. 

98. Mr. Gration submits it is a question for the court to assess.  Whilst Ms. Odze gave details of experience in other cases this is a fact case specific issue on the particular facts of each individual case, which is where this court's focus should be on. 


Discretion
99. If the court concludes that X is settled and/or that the Art.13(b) defence is established, the mother asks the court to exercise the court's discretion and not order a return as she submits such an order would be contrary to X's welfare. 

100. Mr. Perkins submits the court should exercise its discretion and order a return of X to Lithuania.  He said the burden is on the mother to demonstrate the presumption that a return is likely to be better for X.  There has been longstanding involvement of the Lithuanian Courts with this family, much of which has been presided over by the same Judge; and, as a result, that court, he submits, is in a much better position to deal with matters relating to X's welfare.  In addition, it is a court and jurisdiction that the father has ready access to. 

101. His Art.10 point is that, unless the court determines that the father knew of the whereabouts of the child in October 2015, the Lithuanian Court retains exclusive jurisdiction, which he says adds additional weight to this particular matter.  He submits the mother's unspecified references to England were insufficient to clothe the father with "having knowledge of the whereabouts of X". 

102. He submits this has to be viewed in the context that the father is procedurally blameless in the delays in progressing his application, a lot of it having been due to the need for documents to be translated and other delays beyond his control.   He submits the father did not know where the mother was until receipt of her address by his solicitors following the disclosure orders made by  Francis J on 2nd November 2016. 

103. He submits the mother has lawyers who have been instructed in the Lithuanian proceedings and she would be able to make any interim applications; and the court should be careful not to be seen to reward the mother for what has, essentially, been a flagrant abduction; and the defences that she relies upon are, in part, due to her remaining under the radar for so long. 

104. Mr. Perkins stresses the interference in both the father's and X's Art.8 rights and that the Lithuanian Court is better placed to seek to restore X's relationship with her father and so, when considering the discretion of the court has, X should be ordered to return back to Lithuania. 

105. Mr. Gration in his submissions recognises the considerations the court must carefully weigh when considering the exercise of its discretion.  The availability of the Lithuanian Courts and their knowledge of this family are important features. 

106. He submits, when considering the Art.10 point, the court should consider the oral evidence of the father that he knew the mother was in a relationship with someone who lived in England, she was pregnant by him, she wished to give birth in England and was due to give birth around the end of 2015.  It was also clear from the messages from the father in July 2015 that he was concerned that the mother may be planning to take X to England and he was aware of the availability of the protection provided by the Hague Convention.  However, Mr. Gration recognises that the evidence is far from clear that, as at 2nd October 2015, the father knew or could reasonably be said to have known that X had actually left Lithuania.  

107. Having considered the submissions of the parties, I am satisfied about a number of matters.  Firstly, when the mother left Lithuania, it was in my judgment a permanent relocation by her, so X was wrongfully removed on 2nd October 2015 in breach of the father's rights.  That conclusion is supported by the mother's written and oral evidence together with the evidence she gave about the plans that were put in train by her partner in securing accommodation that met the specific requirements that she had wanted in relation to the location of that accommodation in advance of her arrival. 

108. X was placed in a school shortly after she arrived.  Whilst the formal application had been made the previous day, it was a school, as I find, that the mother and her partner had made enquiries about previously. 

109. I reject any suggestion that the mother has sought to tailor her case to suit this conclusion after the issue of these proceedings.  Whilst I acknowledge the points made by Mr. Perkins regarding the email to the nursery in October, I accept the mother's oral evidence that, at that stage, such was the level of her anxiety that she was anxious that her plans were not more widely known.  Her high level of anxiety at the time is supported by her requirements about the accommodation in England, in particular that it should be next to a police station.  As Ms. Odze observed, that is, in her considerable experience in cases such as this, a very unusual request. 

110. The source of the form that details the dates of the mother's maternity leave in the papers is not clear and the email from the nursery to the father adds no new information on this issue. 

111. As regards the issue about when the relevant date is for the "commencement of the proceedings" in Art.12, I agree with the analysis that supports the lodging of an application with the court that will decide the application.  That analysis is supported by academic opinion that relies on authorities from other jurisdictions.  It also makes sense for the practical and effective operation of Art.12 by having such an easily ascertainable date. 

112. I reject Mr. Perkins submission that it is when the application is lodged with the Central Authority of the requesting State as that may, for example, not result in any proceedings being commenced at all if the application, for example, is rejected. 

113. Turning to the issue of whether X is settled here, I remind myself that this is a question of fact and it is sensitive to the facts of each case.  The court needs to be careful not to fall into the trap of being over-technical in considering the ordinary natural meaning of "settled". 

114. The reality is that, despite the protracted litigation in Lithuania, there was only a relatively limited and superficial relationship between X and her father.  The hostilities between the parents and the mother's negative view of the father were features of X's life in Lithuania. 

115. From X's perspective, the difference in her relationship with her father before or after the move could be said to be relatively limited, although I recognise of course that there has been no opportunity for her to see the father since she arrived in this jurisdiction.  I recognise the concern that X has come to think of her father in negative terms and no steps have been taken to address that with X.  As Ms. Odze said, it was notable that, when she raised issues concerning her father, X physically left the table they were sitting at. 

116. The anxiety X displayed resulting in the therapy she has received through her school revolved, to some extent, around issues and anxiety issues concerning her father.  Whether that is due to what she has been told or her own experience of her father such as what took place at the trampoline park incident it is not entirely clear from the evidence, but it is very likely to be a combined combination of the two. 

117. However, even taking those matters into account, when I consider the evidence as a whole, there is much to support the conclusion that on 1st November 2016 X was settled here in the terms of the provisions of Art.12.  She had been living in the home she resides in with her mother, her mother's partner and her half-sister for over a year.  She is attending school and doing extremely well.  Ms. Odze remarked on how surprised she was at how good her English was.  She is reported to be fully integrated in the school, has friends there who she sees in and outside school and attends activities in and outside the school as well as regular visits to her Godmother.  While she has expressed some anxiety that has been appropriately addressed through support at school, she was clear to Ms. Odze that she feels "safe" here. 

118. Her mother, who she is clearly very close to, feels safe and secure here as well, which in turn is likely to have a favourable impact on X's feelings of security and stability which are so integral to her. 

119. All the information the court has points to X's circumstances being a permanent arrangement. 

120. Mr. Perkins invites the court to give particular scrutiny in relation to the mother's circumstances in this case because he says there has been concealment and so, in accordance with the case of Cannon, the court has to be particularly cautious; but, as Mr. Gration has submitted and I accept, there is, as with everything, a spectrum of concealment. 

121. In the Cannon case, it was a case where the child's identity had been changed, there had been very active steps taken to keep the child below the radar. 

122. In this case, whilst I accept and acknowledge that the mother did not inform the father that she had taken X to England, it was a circumstance that was known to the father as being something that she wished to do.  It was something that he discussed with his friends on social media.  He knew and was aware of the circumstances of her relationship,  was aware that she was in the advanced stages of pregnancy,  was aware that she wished to be able to give birth to her child in England and that the father of the child lived and worked in England.  So there was not any active concealment in this case in the sense that the mother then sought to conceal where she was.  It was information that was known to the father and he could have been able to take steps. 

123. As to the circumstances in relation to the way the mother lived here, there was no suggestion that the way she lived in this jurisdiction was done other than with the parties' names being known to all the relevant authorities and living in an open way. 

124. Whilst I recognise, of course, that the mother's actions have deprived X of her relationship with her father, I have to consider that in the context of all the other indicators as to whether X is settled here.  I have reached the conclusion that she is so settled, on the particular facts of this case. 

125. Turning to the question of Article 13(b), the question of whether the mother would accompany X if the court ordered her to be returned is difficult to assess. The court has to be rightly cautious of the factors that would drive the mother to say that and the wider considerations of what may be said to be the mother's intentions to frustrate the Convention process.  But in my judgment the situation is far more complex than that. 

126. Having considered the evidence, I consider that there is a real risk that this mother would not return with X particularly as her partner is very unlikely to permit their child to return to Lithuania with her; and, bearing in mind the baby's very young age, the mother understandably would not want to be separated from her. 

127. I accept her evidence, both in writing and in her oral evidence, in relation to that and the reasons that she gives for that.  Her partner has lived and worked here for some time.  That has to be viewed in the context that the mother has said also that she does not feel safe in returning to Lithuania. 

128. Whilst it is recognised that orders can be obtained to protect her, as has been set out in the detailed email from the Lithuanian Central Authority dated 5th December 2016 regarding the protective measures that could be taken, the court cannot ignore the history of this case of orders that have been made and have been breached by the father.  Whilst it is right that they are mainly orders that were sought between 2013 and early 2015, so they may not be considered to be recent, but the court cannot ignore that the assistance of the Lithuanian Court has had to be sought by the mother on a number of occasions regarding the father's behaviour. 

129. In my judgment, it is more likely than not that the mother would not return to Lithuania if an order was made for X to return really on the two bases that she put forward, namely that she would not want to be separated from her young baby due to the fact that her partner would not consent to the baby going to Lithuanian; and, secondly, because of the history of this case and, whilst recognising the availability of protective orders that can be made, the history of this case where there have been repeated failures by the father to comply with orders that have been made by the court. 

130. If X had to return without her mother it is very likely, in my judgment, such a situation would result in her suffering from a grave risk of psychological harm and it would place her in an intolerable situation.  The evidence, in my judgment, is very clear regarding the closeness of X's relationship with her mother.  She has been her main carer and source of security and stability for most of her life.  I accept the evidence of the mother that it has only been relatively recently that X has even gained sufficient confidence to be able to not hold her mother's hand if they go out.  This security that X feels is reported to derive from her feeling safe here and that, in my judgment, would be shattered if she was forced to return without her mother. 

131. The primary focus of the court remains on the question of the grave risk of harm or intolerability to the child rather than the conduct of the abducting parent.  The significance of the situation for X will face upon her return without her mother would need to be evaluated in the context of the protective measures that can be put in place to mitigate the impact of that return. 

132. A return to the father's care is, in my judgment, unrealistic at the present time.  Although the father suggested to Ms. Odze that X may return with him, in his written evidence he is more realistic - perhaps accepting - that, following any return, any contact he would have with X would probably have to be supervised and his relationship with X would require significant professional support.  That is perhaps most recently illustrated by his more recent emails where he has requested professional support to "repair X's relationship with him". 

133. The father has not suggested X should return into State care in Lithuania and the evidence the court has demonstrates that would be extraordinarily difficult for X, shattering, in effect, the fragile stability she currently enjoys particularly in her home and school which would probably irreparably undermined. 

134. There is evidence in the past that increased anxiety has caused real difficulties for X which have impacted not only on her behaviour, but her speech and her sleep pattern.  A return in such circumstances will do, in my judgment, very little to help recover any relationship with her father.  In my judgment, it is very likely to make matters significant worse as she is very likely to resent being separated from her mother, half-sister and her mother's partner.  In the circumstances of this case, it is difficult to imagine any protective measures that could be put in place to assist X with managing separation from her mother who has been her primary carer for such a significant part of her life. 

135. Even if I am wrong in my conclusion about the mother and she would return with X, her evidence was that she did not feel she would be adequately protected from the father's behaviour.  Whilst it is right protective measures have been put in place previously by the Lithuanian Courts which have provided some protection for the mother, including when the father has been found to have broken those orders he has been punished by the Lithuanian Courts for his actions.

136. Mr. Perkins is right in such circumstances to place reliance on the fact that there were no recent evidence of breaches of any orders after the trampoline park incident in September 2014.  However, I consider it was of note in the oral evidence of the father that the account given by him differed significantly to that of the mother and, more relevantly, it differed from the findings made by the Lithuanian Court in particular that the father's actions on that occasion were contrary to the child's interests and that she may have suffered physical harm from the father. 

137. In his oral evidence, the father displayed no recognition or understanding of the impact of his behaviour on X.  His account appeared to place much of the responsibility of what took place on the mother, which perhaps gives a valuable window and insight into really what the father's views are. 

138. Whilst there is of course a history of the father being punished for any breaches by the Lithuanian Courts for his actions, what is of more concern to this court is the lack of recognition now by the father of his actions in the past, in particular their impact on X, which in my judgment supports the mother's fears that he cannot be trusted to comply with undertakings that he offers or compliance with orders made by the courts in Lithuania. 

139. It is of note that, when Ms. Odze was discussing the issue of return with the mother, she records in her report the high anxiety that the mother felt when that issue was being discussed. 

140. I have carefully factored into my consideration the critical comments that have been made in the Lithuanian proceedings about the mother, but it has been the father's actions - for example, the trampoline park incident - that have been judged to be harmful to X. 

141. Turning to consider the question of discretion to return, as Baroness Hale made clear in Re M, "the discretionary exercise involves consideration of the child's welfare and the balancing of the child's welfare against other factors such as the policy of the Convention". 

142. It is right, as Mr. Gration submits, that the policy of the Convention, although of course an important factor, is ameliorated to some extent in settlement cases as this is not what is termed a "hot pursuit".  The policy considerations that underpin the Convention are clear and must be carefully weighed in the balance.  The need to return children who have been wrongfully removed from their country of habitual residence is obvious. 

143. An important factor to consider also in this case is the availability of the courts in Lithuania who have extensive knowledge of the issues in these proceedings.  On the information the court has, whilst it is clear the father must have strongly suspected that the mother had gone with X to England, the evidence is not clear about what he knew in October 2015 about a removal of X from Lithuania before being informed of that by the nursery in February 2016. 

144. Therefore, on the information the court has, it seems likely that the Lithuanian Courts retain jurisdiction under Art.10.  Whether the proceedings continue in that court, will be a matter for that court to consider.  The Lithuanian Court has stayed its proceedings pending the outcome of the application.  The mother has issued her proceedings here and those proceedings have been stayed by the father issuing these Convention proceedings. 

145. The court, of course, has to consider and weigh in the balance the important factor that was relied upon by Mr. Perkins that, even though on the evidence at the moment X has no real relationship with her father, the best chance of X having a relationship with her father is pursuant to her being returned to Lithuania.  The fact that she does not have one now cannot be relied upon by the mother in a situation, he submits, that she has created. 

146. Whilst that matter is very much in the court's mind, it is also necessary to bear in mind the other considerations that the court has borne in mind in reaching its conclusions that X is settled here. 

147. I also have to factor in X's welfare.  If X returns to Lithuania, life in the short term will be very unpredictable for her.  On the information the court has, such a move will very likely cause her a grave risk of psychological harm and place her in an intolerable situation whether she is with her mother or not. 

148. In addition, because of the findings that the court has made in relation to settlement, the security and stability she currently enjoys will be lost.  Whilst the court of course recognises that within these cases there will inevitably be emotional unsettlement on any return, on the information the court has such a return in this particular case will, in my judgment, be deeply damaging to X's welfare.  It will undermine all the progress that she has made in relation to the settlement, the security and the stability that she has here.  Even if she returned, whilst her father will be in the same jurisdiction, it is right that there is no guarantee of a positive relationship between him and X being restored and every other aspect of X's life will have been turned completely upside down. 

149. X is still receiving some therapeutic support here, which has borne fruit and underpinned the security and stability that she currently enjoys.  Whilst I accept such support in principle may be available in Lithuania, it would have to take place in circumstances that X is very likely to find anxiety-inducing and she is unlikely to be very receptive to receiving such therapy and that is what has caused her such psychological difficulties previously. 

150. Having stood back and considered the discretion that the court has to carefully operate in this case, and having considered the findings that the court has made in relation to X's settlement here and the underlying rationale for that, and also having considered the considerations that the court has made in relation to Art.13(b) and having weighed all the relevant considerations into account, I have reached the conclusion that on the facts of this case the court should not exercise its discretion and order a return of X to Lithuania. 

151. I should make it clear that the conclusion I have reached in this case should not be seen as in any way condoning the conduct of this mother in wrongfully removing X from Lithuania in October 2015, but the court has had to deal with the facts of this case as it presents itself to it within these proceedings and applying the relevant articles under the Hague Convention and Brussels IIR. 

152. So for those reasons, I will dismiss the father's application.