DL v EL

For Hague Convention purposes, the lawfulness of a child’s removal is assessed at the time of removal. A later appellate reversal of the order authorising the removal does not retrospectively convert that removal into a wrongful one. The child’s habitual residence may nevertheless change during the period of an appeal; it is a factual assessment and must not be suspended by a legal fiction. Where the child has become habitually resident in England, a foreign order requiring return may be ineffective in English proceedings concerning welfare and residence. Once summary return under the Convention is unavailable, the court’s inherent jurisdiction is governed by the child’s welfare, not by an attempt to correct parental wrongdoing or reinstate an earlier welfare decision.

The father sought the summary return of the parties’ six-year-old child to Texas under articles 12 and 18 of the 1980 Hague Convention, alternatively under the inherent jurisdiction. The child had been removed from Texas to England by the mother pursuant to an unstayed and unappealed United States Hague return order. That order was later reversed by the United States Court of Appeals for the Fifth Circuit. The father argued that the reversal retrospectively made the removal wrongful and that the mother thereafter wrongfully retained the child in England. The mother relied on the intervening change in habitual residence, together with Convention defences and the child’s welfare. The central issues were whether the reversal altered the character of the original removal, whether the child was habitually resident in England when the later retention was alleged, and whether return should nevertheless be ordered under article 18 or the inherent jurisdiction.

The applications for summary return under the Hague Convention were dismissed.

1. Original removal. Article 3 required the character of the removal to be assessed when it occurred. The Texas order was final subject to appeal, no stay had been sought, and the mother’s removal pursuant to it was lawful at the time. A later reversal did not erase the order retrospectively or make the removal wrongful. A Hague-mandated return did not breach the custody rights of the parent whose earlier conduct had led to the return order.
2. Habitual residence. The child’s habitual residence was a factual question. By July and August 2012 his centre of interest was England: his practical ties with America had been severed and his life there was stable and continuing. The pending appeal did not make his English presence temporary, nor could habitual residence be held in suspense. The Convention did not support automatic re-return after reversal of a return order.
3. Later retention and jurisdiction. Because the child was habitually resident in England when the later Texas order was made, the reversal did not itself mandate return and the Texas order was ineffectual in the English proceedings. The English court had jurisdiction over the welfare and residence applications. Articles 13(a) and 13(b) therefore did not require determination.
4. Article 18 and inherent jurisdiction. Article 18 preserved a power to order return at any time, but any return outside the summary Convention scheme was governed by welfare. The earlier Texas welfare determination did not justify sending the child back for a renewed assessment. The available evidence was insufficient for a peremptory return order, and the child’s welfare was paramount.
5. The court directed that the cross-residence applications be progressed promptly, with firm interim contact arrangements.

The judgment records that the child had previously been returned to England pursuant to a United States District Court Hague order dated 10 August 2011. That order was reversed by the United States Court of Appeals for the Fifth Circuit on 31 July 2012. The present High Court proceedings determined the consequences of that reversal.