For the reasons given by my noble and learned friend Baroness Hale of Richmond in her opinion, which I have had the advantage of reading in draft and with which I agree, I would allow this appeal and make the order which she proposes.
LORD HOPE OF CRAIGHEAD
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, I would allow the appeal. I add these brief comments simply to explain why I agree with her that, where it has been demonstrated that the child is settled in its new environment, article 12 nevertheless implies that there is a discretion to return the child within the procedures of the Convention.
I think that it is reasonably clear, as a matter of language, that article 12 can be read as implying that there is a discretion to return a settled child under the Convention. Two situations are envisaged by the article in which there is plainly no discretion. The first is where, at the date of the commencement of the proceedings, a period of less that one year has elapsed from the date of the wrongful removal or retention. In that situation the first paragraph states that the authority concerned "shall" return the child forthwith. The second is where the proceedings have commenced after the expiration of one year and it has not been demonstrated that the child is settled in its new environment. In that situation the second paragraph states that the authority "shall also" order the return the child. Then there is the coda to that paragraph, which is introduced by the word "unless". The coda does not say in terms what is to be done where it applies. But there are only three possibilities: (a) that return of the settled child must be ordered, (b) that return of the settled child must not be ordered and (c) that there is a discretion to return the child.
The coda would be pointless if (a) applied, as it would lead to exactly the same result as the main part of that paragraph. The consequence, if (b) applied, would be the complete opposite. This risks requiring the relevant authority to do something which may not be in the interests of the child. So one would have expected it to be spelled out expressly if this was nevertheless what was intended. The absence of any such words is a clear indication against this alternative. This leaves (c) as the only remaining possibility. The absence of a direction that the settled child "shall not" be returned, in contrast to the direction "shall" in the main part of the paragraph, indicates that in the situation to which the coda refers there is nevertheless a discretion to return the child under the Convention. At the very least, the matter is left open by the wording of the article.
The argument in favour of there being a discretion…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.