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T (A Child - Hague Convention proceedings) [2016] EWHC 3554 (Fam)

Refusal of summary return of a child to El Salvador, pursuant to the 1980 Hague Convention, after successful article 12 “settlement” and article 13(b) “grave risk of harm / intolerable situation” defences.

T was 6½ and had been born to the parties in El Salvador. The parties divorced and went through private proceedings in 2014, by which the father was to spend regular time with T.  Significantly, the order provided that, if the mother was to leave the country, she was to leave T with the father and, upon her return to the country, the father was to return T to her care.

In late 2014, the mother was the victim of a serious crime at her home. T was with his father. Armed robbers broke into the mother's home, tied her up along with the maternal grandmother and the housekeeper. The latter was raped, the mother was seriously assaulted. Subsequently, the mother and the grandmother received threats, the police/authorities in El Salvador failed to do anything and an international human rights agency found her (and T) to be at serious risk to life and personal wellbeing.

Around that time the mother married C, who lived in London for most of the year. The mother expressed a desire to move to England in early 2015, the father refused. In July 2015 the father agreed to the mother taking T on holiday to Miami for a week. Whilst there, the mother hurriedly flew with T to London on 30 July 2015 after her mother had been followed and threatened back home in El Salvador.

From that date, the father had no contact with T – indirect or otherwise. The matter came before HHJ Turner QC for final hearing on 16 December 2016, the father's application for a return order pursuant to the 1980 Hague Convention having been issued in October 2016. The mother had been relying on a raft of defences, but at trial relied only on: article 12 "settlement" and article 13(b) "grave risk of harm".

The judge dealt with each defence in turn.

Article 12: settlement
From paragraph 51 to 58 the judge sets out a useful summary of the appellate authorities on the settlement defence, noting in particular that:

"… the concept of "settlement" for the purposes involves three elements, namely: physical settlement, emotional settlement and psychological settlement.  Settlement denotes more than mere adjustment by the child to his or her new surroundings.  When considering the question of settlement, the court is not only concerned with the present but also with the future." [para.52]

The judge set out the oral and written factual evidence for and against the question of whether T was settled in this jurisdiction (paragraphs 59 to 76). With express sadness and a degree of reticence, the judge found in favour of the mother's case; T was settled in school, in London, in his social life, in his family life, was fluent in English and – although as a result of the mother's negativity towards El Salvador – he considered England to be his home (para.59).

The judge reminded himself that a finding of settlement engaged his discretion in relation to ordering T's return (paras 58 and 76 - 80), particularly the judgement of Black J (as she then was) in F v. M and N (Abduction: Acquiescence: Settlement) [2008] 2 FLR 1270 addressing the relevant authorities:

"It is unusual for a summary return to be appropriate in a settlement case as Baroness Hale commented in paragraph 31 of Re M [2008] 1 AC 1288. I am told that if I order return, this would the first time it had happened in this country. It is, however, clear that a settled child can be returned to their country of habitual residence.  As to how the discretion whether to return a child should be exercised, Baroness Hale said (paragraph 43):

'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.'"

The judge noted that there was still no authority where the court had ordered a summary return after finding a child to be settled in the UK. He did not make the order sought by the father.

Article 13(b): grave risk of physical or psychological harm/intolerable situation
More briefly, given his conclusion on the primary defence raised under Article 12, the judge addressed the defence under Article 13(b). He set out at para. 81 the established jurisprudence of the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 at paras.31-35. Further he noted that in Re S (A Child) [2012] UKSC 10 a subjective anxiety of a respondent, the mother in this instance, can found an Art.13(b) exception (para. 82).

Looking to the gravity of the 2014 incident, which was essentially undisputed by the father, the length of time that had passed and the uncertainties over the protective measures which could (or could not) be put in place in El Salvador the judge concluded that

"…on balance it would not be right to require T to be returned to face further risks of the kind the mother experienced.  The risks may be relatively low, but they are in my judgment grave in the circumstances of emotional or psychological harm if not of physical harm." (para.92)

On that basis the father's application was refused. On a positive note, indirect and direct contact between the father and T had resumed and the mother – who was heavily criticised throughout the judgment and by the Guardian in her report – had proposed an ongoing regime after the final hearing.

Summary by Thomas Dance, barrister, 1 King's Bench Walk

Neutral Citation Number: [2016] EWHC 3554 (Fam)
Case No. FD16P00542


Royal Courts of Justice

Date: Friday, 16th December 2016


(In Private)

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B E T W E E N :

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RQ Respondent
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MS. J. RENTON (instructed by Hanne & Co.) appeared on behalf of the Applicant.
MISS M. CHAUDHRY (instructed by Dawson Cornwell) appeared on behalf of the Respondent.
MS. S JAFFAR (Solicitor, CAFCASS Legal) appeared on behalf of the Guardian.
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J U D G M E N T (As approved by the Judge)

1. These are Hague Convention proceedings issued on 4th October 2016 concerning a boy called T.  T was born in 2010 and he is now aged six years and seven months.  He was joined to the proceedings by order of Her Honour Judge Finnerty of 18th October 2016.  Ms. Jacqueline Roddy of CAFCASS High Court Team is his children's Guardian. 

2. The father seeks his summary return to El Salvador from which the family comes.  His mother opposes that course. 

3. T has resided with his mother and her new family in London since 30th July 2015, a period of now some sixteen months.  He had been removed from El Salvador by his mother to Miami in the United States with his father's agreement on 24th July 2015 for the purpose only of a holiday until 4th August 2015.  In circumstances I shall shortly explain that was overtaken by his mother's decision to come to the United Kingdom, something she had for some time aspired to do and for which she appeared to have acquired appropriate visas several months before the actual departure. 

4. The father was understandably very upset and had not agreed to T's removal to the United Kingdom permanently or otherwise.  The mother notified him by telephone in what he says were distressingly blunt terms on 4th August 2015 that she did not propose to return and he would not see the child again.  She agrees there was indeed a difficult conversation in which she claimed to have said she had had no option in the circumstances but to flee El Salvador.  I shall return shortly to the background to that suggestion. 

5. Since removal and until today the father had had no direct contact whatever with his son and had had contact by Skype only since a court order of 18th October 2016 made in these proceedings.  He saw T this morning and I have been told it was an emotional and fond reunion.  Skype has not been without its difficulties and has felt for the father, understandably, a very poor substitute for the easy and affectionate relationship he previously had with his son.  He has come to the United Kingdom for the hearing of this case and it is to be hoped in the next day or two further face to face contact may be arranged. 

6. This has been the final hearing of his Convention application.  For this hearing, all parties have had the benefit of representation by experienced counsel to whom I am grateful. 

7. Let me say at once that, for reasons I shall endeavour to explain I fear at some length, I do not intend to order T's summary return.  I say that in order not to prolong agony for the parents and with a very real sense of sympathy for T's father who I know will be bitterly disappointed at the decision.  I have not found this decision easy or comfortable.  As the father himself said to Ms. Roddy, the court is confronted with a very real and humanly painful dilemma. 

8. I have for the purpose of this hearing and with the agreement of all parties: (1) read the hearing bundle containing the detailed statements of the parties; (2) considered a number of supporting documents including information about the state of society in El Salvador; (3) read the CAFCASS report of Ms. Roddy and heard her oral evidence; (4) considered helpful skeleton arguments from all counsel; and (5) heard the detailed submissions of all counsel and been referred to a selection of relevant authorities, many of them very familiar to me. 

9. This is of necessity, in part, an extempore judgment.  My hope is that no deficit of analysis or infelicity of expression will serve to cloud the conclusions I have reached. 

10. The following facts and legal framework are not in issue in this case:

(1) T was habitually resident in El Salvador at the point at which his mother removed him in July 2015.

(2) At the material time his father was enjoying significant contact, the precise quantum being in dispute, and thus had rights of custody in respect of T.

(3) T was unlawfully removed and retained.

(4) The core ingredients of Art.3 of the Hague Convention are established.

(5) The father did not commence these proceedings until 3rd or 4th October 2016 though there had been earlier communication, as I shall indicate, with the Public Ministry and Public Prosecutor's office in El Salvador seeking to secure the child's return. 

11. It had, on paper at least, looked as if the mother intended to seek to defend these proceedings on the following bases:

(a) An Art.12 settlement defence.

(b) An Art.13(a) acquiescence defence.

(c) An Art.13(b) objections defence.

(d) An Art.13(b) harm/intolerability defence.

(e) An Art.20 human rights defence.

In the event, and perhaps realistically, the mother's counsel sought to develop only (a) and (d) above in argument wisely deciding not, in the circumstances, to pursue acquiescence or the child's objections. 

12. The father's counsel submitted that, when properly analysed, none of the defences relied on could or should be established. 

The Background
13. Both parties are El Salvadorian nationals.  The child is also an El Salvadorian national whose passport expired on 16th June 2016. 

14. The father is thirty-two, an agricultural consultant and part time church leader.  The mother is also thirty-two and a wife and mother.  In 2001 the parties commenced a relationship as teenagers when at school.  They married in 2006 and T was born in 2010.  He is their only child together. 

15. In June 2011, the parties separated; each has since remarried.  The father initially lived some thirty minutes by car from the mother.  There is a dispute about the frequency of contact in the post-separation period.  It is the father's case that post-separation and until an order was made in the El Salvadorian Court in respect of his contact with the child in 2012, that he had little or no contact with the child as a result of the mother deliberately preventing such contact.  He says, indeed, that at one point, one hundred and forty-two days passed without contact.  Once the court order came into force, his case is that he would see T every week and had a loving relationship with the child.  He says the child enjoyed activities, church, contact with the paternal grandparents and with friends. The mother's case, by contrast, is that the child's contact was somewhat irregular; the father not taking up all the contact available. 

16. On 7th March 2013, the parties entered into a divorce agreement.  On 20th January 2014, they were divorced.  The court order on that date provided for the father to spend time with the child every Monday and Thursday from 5pm to 8pm plus fortnightly from Friday 5pm to Saturday at 7pm.  Significantly, the order also provided that, if the mother was to leave the country, she was to leave the child with the father and, upon her return to the country, he (the father) was to return the child to her care.  He was ordered to pay maintenance, which the mother alleges he failed regularly to do.  Arrears accrued.  The father agrees that he has not in fact paid maintenance since July 2015 though he claims to have been setting aside sums of money and now has a fund of the sterling equivalent of £2,856. 

17. In August 2014, the mother was the victim of a very serious crime at her home in San Salvador (the capital).  There was an armed robbery at her home documented in some detail in a police report in the papers.  Five or six men entered the family home in what was said to be a premeditated and well organised attack.  The mother, the maternal grandmother and the housemaid were at home at the time.  T was not present, being on contact with his father at the time. 

18. The assailants held a gun to the mother's head, she was seriously assaulted and then apparently tied up with the housemaid and maternal grandmother whilst the men proceeded to ransack and loot the house.  There were repeated serious threats to harm the victims over the course of about an hour.  The housemaid was said to have been orally raped in the mother's presence. The mother was then taken into a separate room by two of the men who undressed her and touched her intimately.  The mother says that she feared she too would be raped and even murdered.  However, the men were apparently disturbed and abruptly left the property.  It was the police assessment that the home had been watched by the attackers. 

19. It is the mother's case that, unfortunately, the El Salvadorian authorities failed to take steps, or effective steps, thereafter to ensure security of the family.  She believed that she may have been targeted because her cousin was a high ranking official in the army.

20. Following the incident, the mother's cousin received threats from possible perpetrators and, on 27th August 2014, the mother reported the matter to an agency called the Inter-American Court of Human Rights seeking implementation of protective orders and their enforcement to include protective orders for T. 

21. On 8th September 2014, that agency found that the crimes described amounted to serious and urgent concern.  It reflected a risk to life and personal wellbeing of the people involved.  The events were found to be extremely serious and to meet the requirements of urgency and necessity in order to avoid irreparable damage.  The ICHR considered the situation had worsened based on the information provided by the representatives relating to the delay of the state authorities in adopting protective measures for them and in diligently investigating the events. 

22. As a result of the incident, the mother moved away from the family home, initially into hotel accommodation and then into alternative accommodation.  She remained deeply worried about the continued security threat to her family. 

23. In September 2014, the housemaid apparently identified one of the perpetrators in the street and the matter was reported to the police.  The police, I believe, made an arrest, but later released the individual.  No steps were taken further to progress the investigation of the crime, despite the mother pressing the authorities for some response.  It is said the investigator responsible for the case was himself killed and another was not reassigned. 

24. In November 2014, the mother married her current husband, Mr. C, a Spanish national.  The father says that he was not aware of this marriage until very significantly later.  That couple had known one another in 1998 and, in April 2011, Mr. C had gone to work in London with a company.  The mother made contact with him again via social media in late 2012 and they maintained, initially at least, a distance relationship. 

25. After the parties' marriage, it seems that Mr. C spent only about three months in El Salvador, thereafter travelling from his home in London about every three weeks and spending a couple of weeks on each occasion with the mother and T. 

26. Around the same time as her marriage, the mother apparently mentioned to the father her desire to move to England.  The father says that he made clear to the mother that she could move, but that the child had to remain in El Salvador. 

27. In December 2014, the father says that he was warned by the mother's housemaid that she (the mother) was planning a trip to Europe where she wanted to live permanently.  The father raised this at a court hearing of some kind and the mother was, according to him, explicitly warned by a Judge that the risk of removal of the child without his consent might in certain circumstances amount to kidnapping.  The mother and child, there is no dispute, travelled to Spain in December 2014 returning in January 2015 and then to Panama for a time in February 2015, that being a place where some of her husband's family live. 

28. In March 2015, it is said the mother informed the father that she wanted to leave El Salvador.  Again, the father made it clear that he expected T to remain. 

29. On 21st May 2015 the father's son, R was born.  R's mother is the father's current partner.  She has a daughter aged nine who is T's stepsister. 

30. In July 2015, the mother was said to be in a park with T and identified a man who had been identified by the maid in September 2014.  The mother claims that she was then followed by two men back to her home.  That incident was reported to the police and the formal report is in the court bundle.  Since the attack, the mother's case is that she and the maternal grandmother had received a number of threatening calls. 

31. The father then agreed to the mother taking the child on a holiday to Disneyland in Miami, United States, from 24th July 2015 to 4th August 2015.  On 17th July 2015, the parties appeared before a notary to formalise this agreement.  The mother had not informed the father at that stage that Mr. C was going to accompany them on the trip.  The mother had evidently purchased return tickets for her and T on 12th July 2015, the same day in fact she says she was followed. 

32. On 28th July 2015 the maternal grandmother claimed that she (the grandmother) was approached by two men whilst in the car park of a supermarket.  She was apparently threatened, asked to inform her daughter that they were "mapped", told to tell her daughter that they required $3,000 "de topon" (extortion money).  They also apparently told her that they knew which school her grandson attended and that, if the bribe was not paid, there would be direct consequences for T.  This matter, too, was reported to the police and the formal report is in the court bundle. 

33. The maternal grandmother informed the mother immediately via telephone of this threat.  The mother, at that stage, was, I believe, in Miami. 

34. On 30th July 2015, she and the child left the United States; tickets having hurriedly been bought by for England.  The father only found this out when he sought details of the child's migratory movements from the migration records offices on 7th August 2015 after the mother's call of 4th August 2015 to which I have already referred.  It appears the mother purchased the tickets on the day of the call alleged from her mother, namely 28th July 2015. 

35. As I have said, on 4th August 2015, the father received that distressing call from the mother.  He says the mother swore at him and made it clear he would never see the child again.  She accepted the conversation was a difficult one, but denied the threat to sever contact and says she had sought to explain that she had had to leave because of the threats that had been made. 

36. Since that call on 4th August 2015 and up to the commencement of these proceedings, the father has had no contact at all with the child.  Since the court order of 18th October 2016, the father has spoken to T every Monday and Friday by Skype.  He insists that he has never missed a call and has always been delighted to speak to his son.  He does, however, have the strong impression that the boy is not left alone on the calls and that his mother or Mr. C are around.  He says that T has expressed happiness at the thought of returning to El Salvador in the calls. 

37. Initially, T, his mother and Mr. C lived in London.  On 11th September 2015, they moved to their current flat elsewhere in London.  On 23rd September 2015, T was registered with a local General Practitioner.  On 6th October 2015, he commenced at his current school. 

38. Meanwhile, on 1st October 2015, the father states that his request for the child's return had been submitted to the Salvadorian Public Ministry.  At that time, the father says that he was unclear about the location of the child.  He subsequently took steps to try to locate the child initially without success.  The mother claims that he knew her email address, certainly by January.  She conceded that she had made no communication with the father between July 2015 and January 2016, an inexcusable break in communication which cannot have served T's interests. 

39. On 26th January 2016, the father received a call from Mr. C.  He asked the father to sign a document which would allow the mother to have full control of all decisions concerning the boy.  The father, unsurprisingly, refused to do this.  The same thing was invited of the father four days later and, again, he refused.  The father claims that Mr. C misled him as to their whereabouts implying that he was in Madrid. 

40. Some email communication followed in the period of January/February 2016.  The mother says that there was some attempt in these to promote and facilitate contact, but the fact is nothing occurred. That must have been baffling for T. 

41. Eventually, the father discovered that Mr. C may be working for his company in London.  In June 2016, the mother gave birth to a daughter, I, by her husband.  T is said to love his half-sister very much. 

42. On 20th June 2016, the Public Ministry in El Salvador apparently received disclosure of the classified file in relation to the divorce and contact proceedings in respect of the parties and the child.  Further, on 27th June 2016, the Public Prosecutor's office decided that a request could be made to the UK.  On 11th July 2016, a direction was made for the documents to be sent to the UK. 

43. On 19th August 2016, the assistant attorney agreed to implement the Hague Convention procedure and to refer the matter to the El Salvadorian Central Authority. 

44. The father secured legal aid on about 9th September 2016 and, on or about 3rd or 4th October 2016, these proceedings were issued.  On 5th October 2016, Mrs. Justice Roberts made a location order and gave directions.  The mother and the child had to be located in this jurisdiction.  That was relatively easily done and the mother and child were served on 14th October 2016.  On 18th October 2016, an inter-parties return date took place before Her Honour Judge Finnerty which timetabled the proceedings towards this trial. 

45. On 17th November 2016, a consent order was lodged which extended time for the father to file and serve his statement in reply to the mother's statement. 

46. The Skype contact provided for in Judge Finnerty's order got underway and has broadly continued since 21st October 2016. 

The Legal Framework
47. The twin objectives of the Hague Child Abduction Convention as set out in Art.1 are:

(a) "to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b)  to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

48. In Re D (a child) (Abduction: Rights of custody) [2006] UKHL 51, Baroness Hale of Richmond observed at para.48:

"The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."

49. Article 12 provides:

"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."

50. Article 13, again, is in well-known terms.  For present purposes, it is Art.13(b) that requires consideration:

"…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."

51. In considering whether T is settled for the purposes of Art.12, I bear in mind that each case turns on its facts. In Cannon v. Cannon [2005] 1 FLR 169, Lord Justice Thorpe noted as follows:

"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."

The court must "look critically at any alleged settlement that is built on concealment and deceit" (see Re C (Child Abduction: Settlement) [2006] 2 FLR 797 at para.47). An abducting parent should not be able to rely on his or her success in hiding the whereabouts of the child in order to evade return of the child to the relevant jurisdiction" (see Re H (Abduction: Child of Sixteen) [2000] 2 FLR 51). 

52. I further bear in mind that the concept of "settlement" for the purposes involves three elements, namely: physical settlement, emotional settlement and psychological settlement.  Settlement denotes more than mere adjustment by the child to his or her new surroundings.  When considering the question of settlement, the court is not only concerned with the present but also with the future. 

53. In Re C (Child Abduction: Settlement) [2006] 2 FLR 797, Sir Mark Potter held as follows at para.46:

"The word 'settled' has two constituents. The first is more than mere adjustment to new surroundings; it involves a physical element of relating to, being established in, a community, and an environment. The second is an emotional and psychological constituent denoting security and stability. It must be shown that the present situation imports stability when looking into the future: see the review of the relevant authorities in Cannon v Cannon [2004] EWCA Civ 1330 [2005] 1 FLR 169 at paras [22] – [25]. The term 'new environment' encompasses place, home, school, people, friends, activities and opportunities but not, per se, the relationship with the defendant parent: see Re N (Minors) (Abduction) [1991] 1FLR 413 per Bracewell J at 417H-41HB." 

54. It also important to note that the reason for delay in bringing proceedings, together with the parties' conduct, is relevant to the issue of settlement as well to the exercise of the court's discretion.  Sir Mark Potter, in the case just mentioned at para.47, said this:

"In determining the issue of settlement, as well as the exercise of the court's discretion if settlement is established, the reason for the delay in bringing the proceedings and the parties' conduct, particularly where the abducting parent has concealed the whereabouts of the child, are relevant: see Re H (Abduction: Child of Sixteen) [2000] 2FLR 51 and Cannon v Cannon supra.  In the latter case, Thorpe LJ stated at para.61 that it is not enough to have regard to the physical characteristics of the child's settlement; equal regard must be paid to the emotional and psychological elements and that, in cases of concealment and subterfuge, the burden of demonstrating the necessary elements of emotional and psychological settlement is much increased.  Thus the approach is not simply to disregard a period of concealment, subtracting it from the total period of delay in order to calculate whether 12-month period has been exceeded; the court must look critically at any alleged settlement that is built on concealment and deceit, especially if the abducting parent is a fugitive from criminal justice.  Thorpe LJ went on to emphasise at para.62 that, even if settlement is established on the facts, the court nonetheless retains a residual discretion to order return under Article 18 of the Hague Convention."

55. In M & Anor. (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288, Baroness Hale analysed the concept of settlement at para.52 onwards in the following terms: 

"Mr Gupta argues powerfully on their behalf that the 'child-centric' exceptions of settlement and objection have been analysed more from the parents' perspective than from the children's.  The comparative moral blameworthiness of mother and father has had an effect upon the judgments in both of the courts below.  But from the children's point of view, they have had to suffer all the upset of being brought to this country secretly.  They were unsettled at first and in September 2005 the older child sent her father an email asking for him to come and take them home.  But, as counsel puts it, 'the father's responses to this plea both in his emailed responses and in his actions were miniscule'.  For whatever reason, he did not come and fetch them home; he did not start proceedings until more than a year later.  When he did start the ball rolling in Zimbabwe, the central authorities between them took more than eight months before the proceedings were brought.  What were the children to do during all this time?  They settled down and got on with making their lives here, where they are happy and have become fully integrated in their local church and schools.  They feel fully settled here whatever the courts may think.  Their views have changed from wanting to go home to objecting to this further disruption in their short lives.  Not only this, their father's emails have given them the impression that he has moved to Zambia.  Although he now states that he was only spending some of his time there on business and would restrict his visits there should the children return, they are understandably confused about the position.  They certainly do not want to be left in the care of their father's new partner.  In short, having been the victims of one international relocation contrary to their wishes, they stand to be the victims of another should the father's application succeed."

Baroness Hale continued at para.54:

"Against all this, the policy of the Convention can carry little weight.  The delay has been such that its primary objective cannot be fulfilled.  These children should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide.  I would therefore allow the appeal and dismiss the father's Hague Convention proceedings, without prejudice of course to his right to bring any other proceedings to resolve his dispute with the mother."

56. In F v. M and N (Abduction: Acquiescence: Settlement) [2008] 2 FLR 1270, Black J (as she then was) warned against taking an "unduly technical approach" to the question of settlement.  At para.66, my Lady said this:

"Mr Harrison in his written submission acknowledges that the guardian had concluded that N was now settled here but submitted that "on the facts of this case her overall conclusion is far too simplistic when one considers the meaning of the concept of 'settlement' as a matter of Convention law.  Plainly one must have proper regard to the authorities as they have interpreted Article 12 but I would resist the development of an unduly technical approach to the question of settlement, or indeed acquiescence.  The Hague Convention is designed to establish procedures to ensure the prompt return of children to their State of habitual residence and our courts have geared themselves to providing a speedy resolution of Hague disputes.  Whilst I appreciate that it is no longer possible in settlement cases to return a child almost as soon as he or she has arrived here wrongfully, prompt resolution of the child's future is still required.  The more complexity and sophistication that attaches to the Articles of the Convention, the longer it takes courts to determine cases and the more appeals there are likely to be.  The constant stream of reported authorities on the Convention, including regular decisions of the House of Lords, speaks for itself.  I have endeavoured therefore to take as simple a view of the concept of settlement as is permitted by the existing authorities by which I am bound.

It is to Cannon v Cannon [2004] EWCA Civ 1330 (reported at [2005] 1 FLR 169) in the Court of Appeal that reference must first be made on the question of settlement although, in my view, Cannon cannot be read in isolation from the more recent House of Lords authority of Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251 albeit that Re M dealt not with the question of whether a child is settled but with the question of what happens if settlement is established."

57. On the facts of that particular case, the court found that the child had become settled in this jurisdiction, despite the disruption caused to the child's relationship with the applicant, because all other factors indicated that the child had indeed become established in the jurisdiction.  On that point, commenting further on Lord Justice Thorpe's observations in Cannon, Black J said at para.70:

"The proper interpretation of settlement, in his view, is that it has two elements, the physical and the emotional.  A very young child takes its emotional and psychological state in large measure from its carer; an older child will be consciously or unconsciously enmeshed in the carer's web of deceit and subterfuge."

At para.71, Black J added:

"I do not want to be thought to be attempting to place the steps that M took in bringing about this state of affairs on a scale of activity ranging from active concealment including, for example, changing identity and remaining on the run, to simply not bothering to tell the other parent the new address.  Still less do I wish to fall into the trap of being influenced not by the impact that the conduct of abducting parent has had on the issue of settlement but by considerations of comparative moral blameworthiness of M and F.  I do take into account that M has been aware throughout that proceedings have been on foot in Poland that may lead to N having to be returned to Poland and, because her own lawyer told her, was aware well before these English proceedings were issued of the possibility of Hague proceedings.  This will have had an impact on M and on the climate in N's home.  M's own evidence discloses that N has been aware of the possibility they may have to return to Poland and reluctant for this to happen.  That is a factor which will have made it more difficult for M and for N to settle here.  On the other hand, this is not a case in which the family has been constantly on the move evading detection.  It is clear from all the evidence that N feels she belongs at home and at school here and is doing well.  The comment of Baroness Hale at paragraph 52 in Re M comes to mind…"

I have already quoted that comment.  At its heart lies the telling sentence: "What were the children to do during all this time?"  Later in para.71, Black J continued:

"Mr Harrison makes the important point that M's actions have deprived N of her relationship with her father with whom I accept she previously had a close relationship and with whom, at times with M's undoubted consent, she had spent significant periods of time in the 6 months before coming to England.  He submits that in the light of this, it would be wrong to find that N is settled.  I have taken this aspect of N's life fully into account but, whilst extremely important, it does not, in my view, prevent her from becoming settled in her new environment.  All the other indicators are that she is so settled and that is what I find to be the case." 

58. Once settlement is found, if that be the case, the question of the court's discretion arises as indeed it does with other so-called defences.  I have a discretion in relation to whether the return of the child should, nevertheless, be ordered.  Again, Black J in F v. M and N is helpful.  At para.72, she said this under the heading "Discretion to return":

"It is unusual for a summary return to be appropriate in a settlement case as Baroness Hale commented in paragraph 31 of Re M. I am told that if I order return, this would the first time it had happened in this country. It is, however, clear that a settled child can be returned to their country of habitual residence.  As to how the discretion whether to return a child should be exercised, Baroness Hale said (paragraph 43):

'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.'

The Convention objectives do not necessarily carry more weight than other considerations. The further one gets from the speedy return envisaged by the Convention, the less weighty the general Convention considerations must be. Baroness Hale makes this point when she says:

'47.  …...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.

48. All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighed together with the circumstances which produced the exception and such pointers as there are towards the welfare of the particular child…'"

Significantly, and with all their collective experience, neither Ms. Renton nor Ms. Chaudhry were able to call my attention to any other reported case where a settlement finding had, in fact, still be followed by a summary return. 

59. I turn to the respective arguments of the parties on this ground.  In para.42 of her skeleton argument, Ms. Chaudhry helpfully summarised thus the principal factors which she submitted established that, at the date of commencement of the present proceedings, T was settled in England.  She identifies eight themes:

(a) "Home environment:  On 11 September 2015 the family moved into an address, which is their family home since this time.

(b) School:  T started at a school on 6 October 2015 which is a 500 metre walk from the family home. The school has an Ofsted rating of 'outstanding'.  He loves school and is doing very well there.  The school reports that T has 'enjoyed a very successful year.'

(c) Family unit: T has is part of a close knit and loving family unit, including, importantly, his half-sister I who was born on 18 June 2016.  T spoke of I in glowing terms to the Guardian.  T has also become extremely close to his stepfather's extended family who live in Spain and visit regularly and in the assessment of the Guardian have become 'important to T in his new sense of family'.

(d) Community:  T is part of a community in a part of London, has many friends, is a committed member of his local football team and has been attending football sessions twice a week at a Community football club.

(e) Wishes and feelings:  T views England as his home and has expressed a strongly held wish to remain here.  When spoken to by the Guardian he made it consistently clear that he 'belongs' in England.

(f) Immigration:  Both the Mother and T have permanent immigration statuses in this jurisdiction - both have residence cards permitting them to reside in this jurisdiction as family members of a EU national.

(g) Health:  T has been registered at his local GP in London since 23 September 2015 and is also entitled to private health insurance through G's employers.

(h) Language:  T is reported to have made enormous achievements in relation to his command of the English language and now converses fluently in English.  He did not require an interpreter when interviewed by the Guardian."

60. Of the mother and her husband, the children's Guardian said this in her helpful report at paras.22 and 23:

"The couple spoke of their confidence that T wants to remain in the UK with them, where they consider he has settled well.  He is making good progress at school, and has established a good and important relationship with Mr C, who he considers is his 'dad'.  M said that - although the plan to move to London was hastily made from Miami - T was entirely accepting of it as he was aware that it had been his mother's longer term plan for them to relocate here. She had no sense that T was in any way disappointed to have missed the planned holiday to Disney World. The couple felt that there was no adverse effect on T on having had no opportunity to say his goodbyes to his dad, his wider paternal and maternal families, his school or his friends, given what they feel was his excitement at moving here.

Mr C urged me to understand that real fear motivated their move to the UK, whilst they accept that they did not follow the correct procedures."

61. Of T's views, Ms. Roddy said this in her report at para.32:

"T understood that I had come to see him to help the judge decide if he should go back to El Salvador.  T immediately told me he doesn't want that to happen. I went on to explain that his dad wants him to return, as he misses him.  T told me how he considers he has two dads, and although 'R is my first dad, my real dad is here.'

T told me that he doesn't 'belong in El Salvador' and wanted me to ensure the judge understand that he wants to stay in the UK as he considers 'El Salvador is not safe, and there is no money in that country. Money is needed to buy food and toys and clothes and books.' When pressed, he agreed he had all of those things when he lived in El Salvador, but went on: 'R broke up with my mum then he went and got another girl. On Thursdays I went to their house but they gave me little food.' He told me that he likes it 'when you are tired of hot, you can make it cold in England. And when it is cold you can make it hot. It is too hot in El Salvador'. T appeared invested in providing a wholly negative view of his country of origin, and his life there, apparently influenced by being aware of his mother's negative view of his dad.

I asked T to tell me about his life before he came to England. He told me that he had a 'bigger (step) sister there' - but couldn't remember her name (which later surprised F, as he said T was close to his 9 year old step sister).  He described how they used to share a double sized bed at his dad's house. It was only when I asked, did he mention he had a baby brother, but he said that he couldn't remember his name. He told me he has no photos of anyone in his Salvadoran family.

I asked T to draw a picture of everyone in his family in El Salvador to help me understand who they were. T drew himself in the centre, with 'R' next to him, his mum and his maternal granddad; his (step) sister whose name he can't remember; then his maternal grandmother; and his little brother. When asked, he told me that his paternal grandparents were dead, and that he didn't have any aunts or uncles or cousins there (at that time, I hadn't received the father's statement, which clearly refers to T spending time with his paternal grandparents, so I am unclear why he would understand them to be dead.

T's picture of his family in England comprised 'Mum and dad and (his sister) I'. He told me that his 'dad' (Mr C) has a sister 'who is my aunt's and a mum 'who is alive and who is my grandma' who apparently visit regularly from Spain, and have become important to T in his new sense of family.

I suggested that the judge might think it was a good idea for him to go to El Salvador to see his dad and family, and everyone could think about whether he should live there. T answered: 'No, I really want to stay here'. I asked him how he would feel if his mum decided to return there with him, but T dismissed that readily, as she wouldn't agree to that. He reminded me 'I like this country' and made further references to how there is more money for 'things' here.

Later in the interview T told me that he would only be willing to return 'if my family came too to protect me'.  He explained that his mum told him that if he went back to El Salvador his dad would keep him there and he would never see his mum and dad and sister again. However, he thinks it might be a good idea to see his dad in the holidays, but only if his mum and dad go too, so that he 'can't get trapped', describing how it would make him scared were he never to see his mum and dad again, which is clearly a fear that is associated with a return to El Salvador."

62. Later, on the subject of T's wishes, Ms. Roddy said this at para.45:

"T was consistently clear to me that it is his wish to remain living in the UK, where he now feels he belongs.  He told me that he considers 'I have a very good school - it is amazing'. He spoke of England in wholly positive terms, comparing El Salvador unfavourably in terms of weather, safety and socioeconomic issues.  During the course of our conversation, there was a shift towards T agreeing to return to El Salvador, but only if his 'family' were to return there too, and ideally only for a holiday. He told me: 'I don't want to go to El Salvador because I want to stay in England. England is a better place, it is a safer place.  It has more money here.  In El Salvador, they don't have so many things.  Here we have lots of things'.

T's 'plan' is: 'I want to stay in London. In my holidays I can go to see R' (his father)."

63. As to her professional views, the children's Guardian said this in her report at para.41:

"It is my view that T has achieved (and has been actively encouraged in the pursuit) to achieve a psychological sense of being settled in the UK, which has been home for the last fifteen months of his young life.  He likes his home; his family, including his little sister; feels safe in the UK and perceives his mum feels safe and happy, with the consequence she will be fully emotionally available to him.  He told me clearly that his life is in the UK, and that he considers himself British.  I spoke to his mum of my concern at the tendency to minimise any sense of T keeping alive his Salvadoran identity, which she considers is secured by the continuing Skype contact with his maternal grandmother (who has come to the UK for an extended stay).

T was clear that his mother and stepfather are the adults providing emotional stability and security for him. He understands that they have made their home in the UK, and that he is part of a reformed family.  He is reliant emotionally on his mother, and as such he considers himself living and settled in the UK, aware as he is that El Salvador represents something negative to her, and by extension, to him.

A central consideration of whether a child can be considered settled is their having a relationship with the absent parent.  It remains disputed to what extent this child had a meaningful relationship with his dad in El Salvador - even by his own (now vague) account - although the photos provided by F show a happy content little boy, apparently cherished by his dad.  T has been allowed to view his father in negative terms (his knowledge of his dad 'abandoning' his mum and the negative connotations of El Salvador being inextricably linked).  The parental relationship has clearly been fraught, tensions compounded by this application and what it represents to the world that M has created in the UK for her family.  Sadly, this disconnect has interfered with the establishment / maintaining a real sense of a relationship with his father, preventing T to be properly considered 'settled' here."

64. A little later, Ms. Roddy continued and concluded at para.47:

"I have some sense that T is aware of his mother's lack of affinity with her country of origin, in what appears to have been a long-held intention to relocate to the UK, and establish a new life here.  I have concern that T's identity as Salvadoran child, and as a child of his father, is not being promoted - or worse - being denied.  It has been to T's great loss that his relationship with his dad was so abruptly ended, and even indirect contact effectively prohibited.  I have some sense that M has encouraged T to relinquish his paternal identity, in becoming part of a new family with Mr C.  That must be remedied if this child is to develop with robust good emotional health.

Although I accept M's real safety concerns in El Salvador, and - if her account is true - might appreciate what drove her to leave the USA in the manner she did, that simply does not explain why T's right to know his father has been disregarded.

Although it is my view that T does object to a return to El Salvador, it is my assessment that his views are entirely aligned with those of his mother, who has been invested in creating a new life in the UK.  I considered this little boy cautious in not presenting his life in El Salvador in positive terms, lest that undermine his wish to remain in the UK.  T's memories of life in El Salvador are now vague with the passage of time, and there has been little effort made by his mother to keep any of those memories alive.  The absence of providing even a photo of F is concerning."

65. In her evidence, the children's Guardian confirmed that T had said clearly what he wanted - namely not to return to El Salvador - but she considered that the boy had lacked real understanding of what had truly happened.  It was, for example, inexplicable and awful that he should think his paternal grandparents were dead.  Ms. Roddy considered the boy had created for himself a sense that he had "moved on" and had a new life here.  His mother, unsurprisingly, was his emotional anchor in life, but the boy had plainly "bought" his mother's narrative. 

66. Ms. Roddy was robustly and rightly, in my judgment, critical of the mother stating that she had effectively "airbrushed out" the paternal family.  Ms. Roddy feared greatly for the boy in the future were this not to be remedied.  She did, however, recognise somewhat late but encouraging steps in the right direction.  The mother had very recently put together a family tree and photographs for the boy, which I was shown I court.  Skype contact was a poor substitute for face to face interaction, but it was at least taking place.  The children's Guardian was profoundly perplexed, as I was, why that had not been taking place in the last fourteen or so months.  The Guardian could certainly not endorse the mother's summary cutting off of contact, whether or not there was any justification in the mother's perception that the father may not have made much effort. 

67. Ms. Roddy considered that the mother's heartlessness had, in the past, been appalling.  I agree.  To say that T's mother had not seen the world from T's point of view would be a generous interpretation.  Ms. Roddy considered that T had probably already suffered some degree of emotional or psychological harm and there was in her mind a real question as to whether or not the mother, even now, understood that convincingly.  Ms. Roddy considered that the mother had found the present court process somewhat frightening and hoped it might effect a change of view, but that was uncertain and it was hard to predict in reality what precisely would occur.  She did think that the mother deserved a stark warning at the dis-service she did her son and would continue to do him were she not now to promote a proper relationship with his father.  Distances and travel costs were an obvious problem.  The children's Guardian hoped that annual visits each way might ideally be possible. 

68. Shortly before I came into court, I received some further proposals suggesting that the mother and her husband might be willing to fund a number of trips a year.  That, again, will no doubt be greeted with a degree of scepticism by the father, but seems a move in the right direction.  I do not underestimate though the cost and difficulty of travel in this particular case. 

69. Ms. Chaudhry, in cross examination, drew out further much of what Ms. Roddy had already reported.  The boy had spoken of "England as his home".  His mother said he had become an "English child".  He had, without doubt, been encouraged to "think English".  He had identified very strongly with his stepfather's family.  They had become part of what Ms. Roddy realistically termed "his newly created sense of identity".  He was undoubtedly integrated into this newly constituted family.  He had, without doubt, been made uneasy by the father's application.  As Ms. Roddy put it, "it threatened the set up".  He "had to resist it for he knew his mother resisted it".  Links to El Salvador that remained were primarily now via his maternal grandmother who remained living there. 

70. Ms. Roddy accepted that the attack had indeed had an impact on the mother and agreed, as a general principle, that a child would very likely pick up on anxieties communicated by his mother.  Ms. Roddy adjudged too much responsibility had been placed on a boy of T's age.  Further, Ms. Roddy accepted that it was positive that the mother was indeed now expressing significantly more pro-contact intentions.  What was needed, she said, was "a real commitment from her".  Ms. Roddy agreed that, while such uncertainty about the future of contact remained, there was indeed, as Ms. Renton suggested, a real question of what might be said to be T's true stability and thus settlement for the purposes of evaluation. 

71. I turn then to the arguments on settlement.  Ms. Renton pressed forcefully the tripartite requirement of which I must be satisfied, namely: physical, emotional and psychological settlement.  She stressed the need not merely to look at the past, but to look into the future.  She submitted that, by her conduct, T's mother had fundamentally prevented true emotional and psychological settlement being established by T at all.  Physical settlement was, undoubtedly, established.  Psychological and emotional settlement were, it was submitted, not.  The boy's existence had come to be based exclusive on his mother's misleading narrative.  That did not in fact mean that he had become a "settled child".  That, Ms. Renton submitted, was evidenced in the following matters:

• The mother's refusal or failure to promote the child's relationship with his father.

• The mother's refusal or failure to speak other than negatively of El Salvador.

• The mother's lack of insight into the loss of T's father and the impact of sudden, unilateral relocation.

• The lack of insight into the loss of the child's wider paternal family and friends in El Salvador.

• The apparent failure in the maternal home to portray a positive image of the father and his family for the boy. 

• The lack of paternal family photographs, only recently remedied, or any effort to promote for the boy any sense of his paternal identity. 

• Creating for the boy a wholly negative view of life in El Salvador.

• Causing a situation in which the boy evidently considered his paternal grandparents to be dead and where he could not apparently even recall the names of his half-brother and stepsister there.

• The effect of substitution of Mr. C's family for the paternal family, giving the boy a wholly distorted picture of his family relationships. 

These powerful factors, it was forcefully and attractively submitted by Ms. Renton, went to the very root of the settlement issue.  This boy in consequence, it was submitted, simply could not be in any true sense emotionally or psychologically settled. 

72. Ms. Chaudhry for the mother urged against an overly technical appraisal of settlement.  She said the court needed to be "child-centric", to steer clear of attributions of blameworthiness.  She asked rhetorically, adopting Baroness Hale's question, what was T to do during his time here other than settle and get on with making a life here.  She pointed to F v. M and N, fact specific as the case was, as at least illustrative of the proposition that loss of proper contact did not in and of itself necessarily prevent "settlement" in a new environment.  Ms. Renton, of course, sought to distinguish that case on its facts and pointed out that there the children's Guardian evidently supported settlement whereas here Ms. Roddy's position was considerably more nuanced. 

73. Ms. Roddy and Ms. Jaffar, who represented T, on T's behalf, were careful not to seek to substitute their discretion for mine.  As I have said, Ms. Roddy was rightly indignant at what had occurred.  Ms. Jaffar underlined that concern in her closing submissions though stopped short of submitting on T's behalf that I should not find settlement, despite the mother's conduct and its likely impact on the boy.  Ms. Jaffar articulated it as "incomplete" or "partial psychological or emotional settlement".  T had, she acknowledged, adapted to the life recently created for him.  It was for me, Ms. Jaffar said, to judge settlement overall and to reach a conclusion as to whether or not this mother could now continue to build on the embryonic progress being made in re-establishment of proper links with T's family and his father in particular.

74. I have, I confess, not found this altogether easy.  I, frankly, deprecate the mother's conduct.  It is difficult to see what she can have been thinking of in the events of the move and its aftermath.  It was certainly not the overall wellbeing of her son.  That said, I find T has now settled here for the purposes of Art.12(2).  I have sought to take an overall view of that.  I find there is from T's perspective a very real element of psychological and emotional stability, albeit, as Ms. Jaffar submitted, one which is incomplete, partial or even deficient.  But, in my judgment, I am persuaded the tripartite elements are sufficiently proved overall to require the finding I now make.  I confess I make it with some real sadness for T's father and not a little frustration at the past conduct of T's mother. 

75. I am not persuaded that this is one of those cases where the purported defence of settlement is built on an edifice of deliberate concealment though I have, nevertheless, because of my hesitations about the mother's conduct, looked extremely critically at the mother's reliance on this particular defence.  Despite her past failure, I am now persuaded that the degree of international contact she proposes may, given time, be sufficient at least to being to mitigate any residual deficits in T's stability and security in England which remain.  I am however satisfied, applying the test I must, that sufficient stability for T has, as things stand, been established and will, I am persuaded, now continue to enable me, on balance, to find settlement proved. 

76. Settlement found, I have of course a discretion in relation to whether T's return should nevertheless be ordered.  Ms. Renton invited me to be bold and robust.  She urged the deeply unattractive nature and flavour of the mother's acts of abduction, the criticism and opprobrium which should attach to that conduct; the plain policy of the Convention itself; the fact that this is now not, as she concedes, a hot pursuit case being no fault of the father's; the very real risk long term of the boy's relationship with his father and paternal family being attenuated or even extinguished; the difficulty the court has on the basis of present conduct of placing any confidence or trust in the mother; the lamentable failure by her to establish or afford proper contact, even indirect contact, in the months before the court process; the fact that the parties are both El Salvadorian, as is T; the fact the child has spent his life there, apart from the last sixteen months; that his maternal and paternal families are there; that the mother's only connection to the United Kingdom is her husband and his work.  Further, there is no reason why the mother could not issue and pursue relocation or other child arrangements proceedings there.  As she conceded, she could and should have done in the first place.  Finally, and despite the mother's eleventh hour offer of a child arrangements order here with all the questions of enforceability of that, the reality was that the father's finances and the challenges of travel were likely gravely to impact his ability to see his son with any acceptable degree of regularity. 

77. For the mother, Ms. Chaudhry urged that the settlement finding implied that swift return - as the Convention contemplated - was no longer available.  This was not, it was agreed, a hot pursuit case.  Time had passed.  Return now would be contrary, she submitted, to T's welfare and best interests.  Forum considerations were not applicable here; the only extant claim in El Salvador being the mother's for child maintenance.  There were no other ongoing relevant child proceedings there, nor had there been since 2014.  Resolution of the issues in El Salvador was, it was submitted, likely to take a very significant period of time.  The relevant current information or at least much of it crucial to those proceedings was largely here in the United Kingdom. 

78. The mother's situation upon a return, Ms. Chaudhry submitted, was likely to be difficult and tense and thus not good for T.  She feared for her and his safety by reason of recent past events in El Salvador.  The mother had, it was agreed, been a victim of serious crime there.  Further, a move away was destined - at least in the short term - to separate T from his half-sister, still a baby, the mother's husband having, it was said, made clear that he did not envisage the entire family relocating to El Salvador.  Ms. Chaudhry submitted that this left the mother in a very difficult position indeed, given her new family responsibilities. 

79. T, it was submitted, ought not to be made to pay the cost of his mother's past mistakes, which Ms. Chaudhry readily acknowledged on her behalf.  The mother was now, it was argued, committed to putting right her past failures with regard to contact and had learnt a painful lesson in the course of the present case. 

80. My discretion is at large. I have sought in a sad case to weigh the issues anxiously.  I am satisfied that I should exercise my discretion against ordering T's immediate return essentially for a combination of the reasons submitted on the mother's behalf. 

81. I turn more briefly to the Art.13(b) "grave risk of physical or psychological harm/intolerable situation" defence.  I do so in the alternative to my findings on settlement lest I be wrong in those and because the parties have helpfully argued the point.  The jurisprudence is essentially common ground.  I have well in mind what was said by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 at paras.31-35, specifically:

(1) The words of Art.13 are clear; they should not be given any gloss. (Para.31)

(2) The burden of proof lies with the person, institution or other body which opposes the child's return.  Standard of proof is the ordinary civil standard. (Para.32)

(3) The risk to the child must be serious enough to be classified as "grave" not just "real".  Although "grave" characterises the risk rather than the harm, there is a link between the two.  Thus, a relatively low risk of death or really serious injury might properly be described as "grave" while a higher level of risk might be required for other less serious forms of harm. (Para.33)

(4) The words "physical or psychological harm" are not qualified.  However, they gain colour from the alternative or otherwise placed "in an intolerable situation". There are some things which it is not reasonable to expect a child to tolerate. Among these are physical or psychological abuse or neglect of the child himself and exposure to the harmful effects of seeing and hearing the physical or psychological abuse of his or her own parent. (Para.34)

(5) The situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called on to face an intolerable situation when he gets home.

82. I note further that in Re S (A Child) [2012] UKSC 10 a subjective anxiety of a respondent, the mother in this instance, can found an Art.13(b) exception.  Ms. Chaudhry for the mother, however, put the mother's case in two ways: (1) The fact that the mother was a victim of serious crime.  Reliance was placed on the distressing history of gang activity, I have outlined above.  It was her ground that I should at present proceed on the basis these events actually occurred. (2) Ms. Chaudhry says that exceptionally long delay in resolving the proceedings has in itself given rise to an intolerable situation for T were he now to be returned (see Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 paras.51-53).

83. This is not a case where it was in fact argued that the mother is, rightly or wrongly, terrified to return.  Ms. Chaudhry invited comparison with Re D (Article 13(b) Non-return) [2006] 2 FLR 305, Court of Appeal, a case involving Venezuela where the mother had in fact been shot by a query hired gunman.  I do not derive much assistance from that case beyond a powerful illustration of some of the tricky issues which may require determination.  Unsurprisingly, the case involved extremes of violence and of danger which made it almost inevitable that the court would conclude that the children would be at significant risk if returned to Venezuela.  Again, as with so many of these cases, the findings and conclusions are fact specific.  As Ms. Renton pointed out to me, quite apart from the extreme facts of that case, a certain amount of expert evidence supported the mother's position in any event. 

84. Ms. Chaudhry emphasised the gravity of the 23rd August 2014 incident and the subsequent further threats and their specificity, the compelling nature of the supporting contemporaneous police reports, the fact that the mother had received State funded counselling fortnightly for about five months and, as I was told during the argument, the fact that her cousin, the soldier, and his family are currently provided with twenty-four hour surveillance of some sort. 

85. I was provided with and read a variety of internet sourced material about the general situation in El Salvador.  There is no doubt or challenge but that gangs are an enormous problem there.  Crime and murder rates are exceptionally high.  That said, San Salvador, the capital city with approximately 1.7million people, has safer and less safe areas and very many people - including T's father - lead normal lives without undue danger. 

86. For the father, Ms. Renton submitted that the mother had been guilty of some exaggeration of the dangers.  She had married in San Salvador some months after the key incident.  She had remained there until July 2015.  She now proposed the possibility of annual and indeed extended trips to facilitate contact.  She and T could, if she chose, it was said, return, even temporarily, to a different home in a different area.  Even if I were to conclude the "threshold" was established, Ms. Renton urged that I ought not then to conclude that the El Salvadorian State was powerless to protect its citizens.  There was material suggesting the police had acted in the mother's case, that State initiatives to reduce gang crime were being implemented, that her cousin was plainly under active protection.  These matters and the fact that El Salvador was a signatory to the Convention meant that I ought to be slow to subscribe to any vague assertion, which is what Ms. Renton said was being advanced here, that protective measures would be insufficient. 

87. Again, I am very aware that I am dealing with some very real uncertainties here.  I certainly do not consider El Salvador to be any sort of "failing State".  The rule of law applies.  But the evidence has also satisfied me that there was and is an objectively verifiable reality to the mother's experiences in 2014/2015; that they were indeed very serious and that they amounted to precipitating factors, if by no means the sole factors, in her decision to peremptorily to leave the country. 

88. The factual matrix here is thus a somewhat unusual one.  Conventional protective measures, injunctions, undertakings from the other parent, housing, maintenance, restraint from prosecution are not of assistance.  The best the unfortunate father can say here is, in effect, "the State will protect, there are police, there is a justice system, government initiatives to tackle the gang problem are in place".  These, regrettably, afford the mother and I am afraid the court little overall comfort. 

89. All were agreed that I should proceed, absent  detailed fact finding, on the basis that past problems had in fact occurred.  It was not contended that these were fabrications, even if there was an element of exaggeration, sceptical as the father undoubtedly is about certain timings, not least the telephone call from the maternal grandmother received while the family was Miami with, so to speak, British visas in their pocket. 

90. In these circumstances the chapter of events described in 2014/2015 was serious, frightening and damaging to the mother.  It was truly a mercy T was with his father on that ghastly day in August 2014 and not witness to what transpired in his home. The fact is that the authorities appear not to have been able to solve that crime or to prevent the further incidents which followed.  Some support for the mother's contention is to be discerned in the correspondence from the Inter-American Commission of Human Rights annexed to the mother's statement (C59 on).  The mother's cousin appears to warrant continuing protection of some kind though, I am bound to say, her mother has apparently moved homes and I have been told there have been no further difficulties which the grandmother has experienced.

91. Again I do not find the decision at all easy, but have concluded on balance it would not be right to require T to be returned to face further risks of the kind the mother experienced.  The risks may be relatively low, but they are in my judgment grave in the circumstances of emotional or psychological harm if not of physical harm. 

92. I am not, regrettably, persuaded that State provided or other protective measures of a sufficient kind can realistically be put in place to ensure T would not be called on to face an intolerable situation were he to return to live with his mother in El Salvador.  I find the defence made out on that ground. 

93. I also find it made out on Ms. Chaudhry's alternative basis.  I need not repeat my conclusions on settlement.  Normally, of course, a return to El Salvador for a short finite period to enable the welfare decision to be reached would not give rise to a grave risk of harm or intolerability (see Mostyn J in SP v. EB and KP [2014] EWHC 3964 (fam) para.21).  Where, however, as here, a child is settled, is very dependent upon his mother, is integrated into a new family unit with a very young half-sister and has established a new life and mindset and externally at least appears to be prospering, it is likely to be intolerable and seriously harmful to order a disruptive summary return where welfare proceedings that would undoubtedly and ultimately decide his future have not even been commenced and would, inevitably, take significant time to conclude. 

94. Once again, my Art.13(b) finding needs to be followed by an exercise of my discretion.  The arguments I have already set out above may be redeployed by the parties in this context too.  I reach the same conclusion.  I do not intend to make a summary order for T's return. 

95. Although Ms. Chaudhry's client's answer had made passing reference to the deployment of an Art.20 Human Rights defence and Ms. Renton helpfully outlined the relevant jurisprudence in her skeleton argument at paras.59-64, neither of these experienced counsel sought further to develop arguments before me and rightly focussed on the difficult matters I have discussed above.  There was agreement that Art.20 and Art.13(b) harm essentially stood or fell together.  There was agreement that the parties' Art.8 ECHR rights were already catered for when considering a return under the Hague Convention.  I was referred to SP v. EB & KP supra and was aware of the discussion of these issues by MacDonald J in J and C v. B [2015] EWHC 2047 (Fam) at paras.67-86.  In the circumstances, I do not propose to say anything further about Art.20. 

96. It follows that, not without very real regret, I refuse the application by the father for summary return of T to El Salvador.  I am grateful to all counsel for their assistance.  I propose now to discuss further with counsel the suggestion made yesterday on the mother's behalf that I might give thought to the making of a contact order in relation to T.  Ms. Chaudhry earlier today submitted a draft by email, which I intend to discuss with counsel.  In any event, I will invite counsel to collaborate over the drawing of a suitable order to conclude these proceedings.  There will be no order as to costs, save for detailed assessment.