DL v EL

Habitual residence is determined by one fact-sensitive test under domestic law, European Union law and the 1980 Hague Abduction Convention. The child’s integration in a social and family environment and all the circumstances of the case are central.

A lawful removal under a return order does not retrospectively become wrongful merely because the order is later set aside on appeal. In such circumstances, the remedy lies under Article 18 of the Convention and, in England, the inherent jurisdiction. Whether an appeal is rendered academic depends substantially on the speed and structure of the appellate system.

The child, K, had lived in England for an extended period after being brought from Texas. A Texas court later made a return order under the 1980 Hague Abduction Convention, pursuant to which K returned to England with his mother. The father’s appeal was subsequently allowed and the return order was set aside.

The father then sought K’s return from England under the Convention and invoked the inherent jurisdiction. Sir Peter Singer, sitting as a deputy judge of the Family Division, refused to order K’s return. The father appealed, arguing that K had retained habitual residence in the United States, that the removal had become wrongful retrospectively, and that the welfare assessment was inadequate.

The central issues were whether K lost his United States habitual residence after the lawful removal and whether the later appellate decision created a Convention remedy for his return.

1. Appeal dismissed. Lord Justice Thorpe gave the substantive judgment, with Lady Justice Arden and Lord Justice Beatson agreeing.
2. Habitual residence. There was no distinction between the domestic test, the European Union test expressed in Re A (Area of Freedom, Security and Justice) (C-523/07) and Mercredi v Chaffe (C-497/10), and the autonomous Convention test. The inquiry focuses on the child’s integration in a social and family environment and the circumstances specific to the case. K’s previous extended residence in England and his continued residence there made it artificial to regard his presence as conditional or transient pending the father’s appeal.
3. Wrongful removal and retention. K’s departure from the United States was lawful because it occurred pursuant to an order of a competent court. Article 3 of the 1980 Hague Abduction Convention did not retrospectively convert that lawful departure into wrongful removal or retention when the order was set aside about a year later. The Convention had not been designed for that situation. The available remedy was under Article 18 and, in England, the inherent jurisdiction.
4. Welfare and appellate review. Deciding whether a welfare application requires further investigation, evidence or expert assistance is primarily a matter for the trial judge’s discretion. Sir Peter Singer had not finally determined the case against the father; he had found the evidence insufficient and the father had not taken the opportunity for a fuller investigation and further hearing. The criticism of the welfare assessment therefore failed.
5. Policy observations. In obiter observations, the court noted that the practical effect of an appeal after lawful removal depends on the appellate system. Delayed appeals may undermine an effective right of appeal, whereas the expedited permission and appeal process in England generally prevents the issue from arising in practice. The court welcomed the decision in Chafin v Chafin.
6. In a further obiter endnote, Lord Justice Thorpe considered that differences between the English and French versions of Mercredi supported treating permanence as a weaker, and possibly unnecessary, ingredient of habitual residence.

• Court of Appeal (Civil Division): on 16 July 2013, dismissed the father’s appeal.
• High Court of Justice, Family Division: Sir Peter Singer, sitting as a deputy High Court judge, refused the father’s application for K’s return from England under the Convention and the inherent jurisdiction in a judgment dated 17 January 2013.