DL v EL [2013] EWHC 49 (Fam)

[2013] EWHC 49 (Fam)Case No FD09P00269
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 January 2013
Before
Sir Peter Singersitting as a Judge of the High Court
Between
DLApplicantELRespondent
Mr Richard Harrison QC and Miss Jennifer Perrins (instructed by Bindmans LLP) for Applicant FatherHenry Setright QC and Mr Michael Gration (instructed by Freemans) for Respondent MotherHearing Hearing dates: 10 to 14 December 2012 and 17 January 2013
JudgmentThis judgment is being handed down in private on 17 January 2013. It consists of 81 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child KL and of the adult the other child members of his family must be strictly preserved.Sir Peter Singer:
[1]I am concerned with applications to decide whether a young boy KL currently living in West London with his mother EL (M) should be removed to San Antonio, Texas, where his father DL (F) has his home. KL is six and is the only child born to these two parents. F seeks an order that he return forthwith to that jurisdiction in twin proceedings heard conjointly under the Child Abduction and Custody Act 1985 (which incorporates into English law the key provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction) or alternatively pursuant to the inherent jurisdiction of the English High Court. When in this judgment I refer to 'Hague' or to 'the Convention' I mean that 1980 Convention unless from the context otherwise appears.[2]The legal considerations underlying, in particular, the Hague applications are complex both in the forensic background which precedes them and in the legal arguments skilfully deployed by counsel who have represented the parties in these proceedings, Mr Richard Harrison QC and Miss Jennifer Perrins for F and Mr Henry Setright QC and Mr Michael Gration for M. If this judgment is reported I suggest that it should be so as DL v EL (Hague Abduction Convention: effect of reversal of return order on appeal).

The factual background

[3]F has an older son, now at university, by an earlier relationship. KL has a younger half-sibling now aged some 21 months born to M in England by a subsequent relationship. On each side the parents' families originate in Ghana. F is a dual national naturalised American; M's upbringing was in England from the age of 4 and she has indefinite leave to remain here. The parents, now in their forties, met and married in Texas in December 2005 and KL was born there in August 2006. Together with F's elder son they lived in Texas prior to the breakdown of their marriage evidenced by a Texan divorce petition issued by F in March 2008. Meanwhile he, a serving member of the American armed forces, was deployed to Iraq between May and September 2007 during which time of course KL was in the sole care of M; while between October and December 2007 M, a qualified social worker, took up a short term work assignment in England during the course of which KL was in the sole care of F.[4]By June 2008 the parties had agreed the terms of temporary orders made in the Texan court to secure the interim during which F was again deployed, this time to Afghanistan, from June 2008 until August 2009. The agreed orders plainly envisaged that M and KL would continue to occupy the former matrimonial home in Texas, but in July 2008 M removed herself and KL to London where they lived, in the event, until in March 2010 the Texan court finally finalised the divorce (and I use that description advisedly) and, in contested welfare-based proceedings in which both parents took part, awarded F custody of KL together with the exclusive right to designate his place of residence.[5]Meanwhile, in that period between June 2008 and the hearing in March 2010 M had taken a number of steps and behaved in a variety of ways which were unfavourably characterised by Mr Harrison in his opening to me but into which Mr Setright declined to be drawn, and therefore offered no responsive correction, saying with some justification that they were hardly if at all germane to the matters more centrally in issue in the case. That having been said the documentary evidence, and the findings of the Texan judge in March 2010 (and further summarised by that same judge in her Findings of Fact and Conclusions of Law dated 12 July 2010) and the narrative account of the history contained in the 10 August 2011 appeal court judgment referred to below, to some large extent justify the complaint that M from this early post-separation stage took unilateral and clandestine steps in relation to KL which did indeed involve elements of deception (for instance in relation to his acquisition of immigration status in the United Kingdom), while at the same evincing her opposition to the smooth flow of contact between F and KL.[6]KL remained living with F in Texas from March 2010 until 13 August 2011. M then removed him to England, acting in reliance upon an order of the Texas Federal Court made in Hague abduction proceedings instituted by her upon the basis (which was indeed adopted by the first instance Hague judge) that KL had been habitually resident in England when the March 2010 order awarded his custody to F, and that F by acting on that order and keeping KL living with him was thereafter wrongfully retaining him in Texas. Central to the issues before me are questions which arise in relation to that, may I say, bizarre decision: not least whether now to characterise M's August 2011 removal of KL back to England to live with her here as lawful or wrongful(i) at the time of the removal; and(ii) subsequently in light of the reversal on 31 July 2012 of that Hague determination by the United States Court of Appeals for the Fifth Circuit court;(iii) after M 'retained' him in England despite an order made on 29 August 2012 by a Texas Court Federal judge (in fact, the same judge who had made the by now reversed Hague return order, apparently of his own motion and certainly without either party having any opportunity to be heard); and perhaps(iv) prospectively, depending upon the outcome of as yet unresolved proceedings before the United States Federal Supreme Court which challenge the validity of that reversal.[7]There has in addition been a multiplicity of applications and hearings in both jurisdictions between August 2011 and now, but to complete the factual chronology, K has since August 2011 lived with M in England.[8]In summary therefore, and in terms of his actual presence in the two territories, K spent from his birth in August 2006 for two years until July 2008 living in Texas; from then for some 20 months until March 2010 was in England; remained in Texas pursuant to the custody order for some 18 months until August 2011; and has (at the time of writing in December 2012/January 2013) been in England again for the last 16 or 17 months.

The procedural history

[9]No understanding can be gained of the applications before me without a relatively detailed timeline of prior forensic activity on both sides of the Atlantic. I will try to make it as compact as possible, drawing I trust uncontroversially upon the material parts of a case summary agreed between the parties which, as a result of a direction given by Mr Justice Roderic Wood, was sent to the Supreme Court of the United States on 29 November 2012.[10]On 11 March 2008 F issued divorce proceedings in Texas, and M in due course cross-petitioned. In June 2008, in light of H's imminent deployment to Afghanistan temporary orders, including extensive arrangements for the care of KL, were agreed and the divorce proceedings were stayed until 1 October 2009.[11]In October 2008 M (who had brought KL to England on a visitor's visa) applied for him to have indefinite leave to remain in the UK.[12]F was due to have contact with KL in March 2009 in accordance with the June 2008 and February 2009 Texas orders. On 3 March 2009 F sought and obtained what was in effect a mirror order from the court in London.[13]The immigration application made on behalf of KL having been refused in June 2009 the Texan court, believing it necessary to do so to prevent the child's allegedly imminent deportation from England, devised a scheme whereby a 'final' decree of divorce was pronounced upon the basis that it would thereafter be set aside. This contributed to the grant to KL in February 2010 of indefinite leave to remain in the UK.[14]Very promptly after his return from Afghanistan in August 2009 F applied for and obtained an order setting aside the earlier divorce decree. The Texas court was much exercised in the summer and autumn of 2009 with disputes concerning the arrangements whereby F was to and indeed did have contact with KL in England over three weeks in October and November 2009; and thereafter with a number of hearings leading up to the contested inter partes hearing of the custody and divorce proceedings on 1 and 2 March 2010.[15]The Texan court then made the equivalent of a residence order in F's favour (he was granted exclusive rights to designate the residence of KL). Both parties were represented, and gave evidence at the hearing. Following the hearing KL stayed with F in Texas and M returned to England. She commenced an appeal against the order, but then withdrew it: there was thus no appeal and so the March 2010 orders were not disturbed.[16]Instead, on 25 February 2011 M filed a petition in Texas relying upon the Hague Convention and alleging that KL was habitually resident in England and that F's retention of him pursuant to the order made on 2 March 2010 was a wrongful retention for Hague purposes. On 10 August 2011 M's application prevailed, the District Court holding that KL was habitually resident in England and Wales. An order was made requiring F to deliver up KL to M and for him to be returned to England forthwith. There was no application for a stay pending appeal either then or thereafter. F complied with the order and M and KL returned to England on 14 August 2011.[17]On 19 September 2011, over a month after KL had gone, F lodged an appeal against the decision in the Hague Convention proceedings.[18]On 20 October 2011 M issued an application for a residence order under the Children Act 1989 in the Principal Registry here in London. From then until March 2012 I would characterise the stance of F in relation to those proceedings as ambiguous, without thereby meaning to prejudge (if in the light of my approach to this case it becomes necessary for me to do so) M's assertion that F has acquiesced in what (on his case) is her wrongful removal/retention of KL in this country which (she says) opens up to her a doorway, via article 13(a) of the Convention, which should lead me (if I get that far) to exercise discretion against ordering the return of KL forthwith to Texas. Meanwhile on 23 November 2011 a residence order in favour of M was made and on 9 of February 2012 an order for contact to F was made.[19]On 3 March 2012, however, F instituted his own applications under the Children Act, for both residence and contact. Orders for contact were made on 3 July, but then on 31 July 2012 came the order of the United States Court of Appeals for the Fifth Circuit reversing the Hague order pursuant to which M had removed KL to England, and holding that far from being wrongfully retained in the USA KL had been habitually resident there at the time in question in the Hague proceedings. M's attempts to seek rehearing of the appeal all failed. But on 7 September 2012 she presented a petition to the US Supreme Court for a writ of certiorari, and presented a motion for consolidation of this case with a separate and still pending case called Chafin v Chafin. The facts are similar, in that the mother in that case left America with the parties' child in reliance on a court order which had neither been stayed nor was the subject of appeal; and on her behalf it is argued that the appeal against that order is 'moot' and should not be allowed to proceed as the child is no longer in the jurisdiction. If the mother in that case (which was argued before the Supreme Court in early December, with a judgment anticipated in the spring) is successful in her argument, M in this case will seek to assert that the 31 July order reversing the Hague order pursuant to which she removed KL should itself be overruled, thus leaving her with the benefit of the earlier (albeit clearly erroneous) order of 10 August 2011.[20]I interject to mention that neither side suggested that the December hearing before me should be adjourned to await the outcome of the US Supreme Court decision, although if the moot point is decided as contended for by both mothers it may well be thought yet again to affect the dynamics of the law which should be applied and of the outcome, albeit (and albeit in this case for the second time, on F's argument) retrospectively.[21]On 9 August 2012 F issued his first Hague application here in London, and on 20 September 2012 issued a further application for the same relief, relying as an alternative to other grounds upon the order made on 29 August 2012 referred to in [6] above non-compliance with which by M, he asserts, constitutes wrongful retention. As indicated at the outset, failing a Hague return order he asks instead that KL be returned in the exercise of the court's inherent jurisdiction.[22]After a number of interlocutory directions hearings the case came before me during the week of 10 December 2012. I read extensive documentation and read and heard extensive arguments, but no oral evidence, and reserved this judgment.[23]I should record that, in the normal way, KL was brought to meet a CAFCASS officer whose report was to address the child's wishes and feelings as regards returning to Texas and in particular whether he objects to doing so and the reasons for any such objections; and upon his degree of maturity. Her report described a somewhat confused 6 year-old upon whose expressed wishes it would be inadvisable to place too much reliance. He did not appear averse to a return to America when first seen, but his views had hardened against that outcome when the officer saw him again at M's request next day. She (the CAFCASS officer) perhaps thought it unnecessary to investigate the reasons for his change of view. A subsequent application for KL to be separately represented at the hearing, made by M, was refused.

The legal issues in the case

[24]As an informative start, I take this verbatim from the joint letter sent to the US Supreme Court:
'The father's application is for the summary return of KL to the jurisdiction of the United States of America (State of Texas) pursuant to: (a) Article 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and/or (b) Article 18 of the Hague Convention and the Inherent Jurisdiction of the Court. The mother has raised a number of defences in her answer. She asserts that: (a) The removal of KL from the USA was not wrongful for the purposes of Article 3 of the Hague Convention because it was undertaken in compliance with the order of the United States District Court for the Western District of Texas dated 10 August 2011; (b) KL was not habitually resident in the USA at the relevant time for the purposes of Article 4 of the Hague Convention as he became habitually resident in England following the removal; (c) Following KL's removal, the father acquiesced/consented (for the purposes of Article 13(a) of the Hague Convention) to the removal of KL from the USA (based upon the father's participation in English proceedings between November 2011 – July 2012); (d) To order KL's return to the USA would place him in an intolerable situation for the purposes of Article 13(b) of the Hague Convention (based upon an assertion that KL is settled in England); (e) The father's application for the return of the child to the USA pursuant to Article 18 of the Hague Convention/inherent jurisdiction should be dismissed on the basis that she asserts that it would be contrary to the KL's best interests to be returned to the USA. In particular the following issues arise in this case: (a) Does the decision of the US Fifth Circuit Court of Appeal on 31 July 2012 have the consequence of rendering the removal '
'wrongful'' for the purposes of Article 3 of the Hague Convention? Or is the mother entitled to say that the removal did not breach the father's rights of custody as it was effected pursuant to an order of the court albeit subsequently appealed? Is the ''consent'' to the removal pursuant to the court order a matter to be considered under Article 3 or 13? If the removal of the child was not ''wrongful'', then (b) Does the US appellate decision and the consequential US order made on 29 August 2012 requiring the mother to return KL mean that she has wrongfully retained the child away from the USA? Or is the child's habitual residence in England? If the child has not been either wrongfully removed or retained away from the USA, then (c) Should the court order his return to the USA pursuant to Article 18 of the Hague Convention and the inherent jurisdiction in view of the extensive involvement of the American courts. The first two issues ((a) and (b)) identified in the preceding paragraph are novel, certainly as far as English law is concerned. There is no reported authority on these issues in this jurisdiction and the English High Court may decide these issues at the final hearing on 10 December 2012. This case will then become the authority on these issues.'

My approach to this judgment

[25]The documentation placed before me in December ran to 11 (including 2 core) ring-binders. There were then 2 further bundles containing more than 40 cited cases and other documents which extended far and wide both geographically and down the decades. The opening submissions from counsel ran to 67 pages and their closing summaries (requested by me and graciously undertaken, of very considerable assistance to me, and for which I thank them) extend to a further 32. The terrain over which refined submissions and discussion ranged was deep-furrowed and wide. If I were to attempt to do full justice to every submission I would need to write volumes, but would not in my estimation thereby achieve easy clarity in presenting and reasoning my decision. Yet my position on the broad issues is clear in my mind and can be more shortly stated.[26]I propose therefore to state relatively summarily my reasons and the clear conclusions which I reach upon the central issue: whether, at this stage in these proceedings as presently constituted, to order KL's return to Texas. The litigation history of this child thus far tends strongly to suggest that my decision, not to order his return at this stage, will lead to an application from F for leave to appeal, and indeed that sequel was indicated as likely by Mr Harrison in the course of the hearing. If F does not accept this outcome and permission to appeal is granted I do ask myself whether the Court of Appeal will be assisted by what in effect would be a third set of comprehensive submissions contained in a judgment certainly rivalling and possibly extending significantly beyond the scale of the presentations they will receive from counsel? With some but I hope not undue diffidence, I doubt it, and I doubt whether the Court of Appeal's task, if put to it, will be rendered anything other than more onerous if the load of the case has added to it a conventional and referenced textbook judgment from me. I would rather (and hope that, if it comes to it, they would rather) have what I believe can be presented as relatively straightforward conclusions based on my understanding of the relevant authorities and my experience and perception of the way the Convention does and is meant to operate in practice amongst its now nearly 90 Contracting States.

Was M's removal of KL to England on 14 August 2011 'wrongful' in Hague terms?

[27]Unless M acted wrongfully in moving KL to England days after the Texan court on 10 August 2011 ordered his return, this basis on which F in turn seeks his return to Texas must fail.[28]That order was in no sense provisional, as it might have been if made in a jurisdiction where such can be the status of such an order. It clearly was (as it would have been if made in London) final subject to any appeal. In some jurisdictions (and I take England and Wales as one such and Hong Kong as another) a factor in deciding whether a stay pending appeal should be granted is whether without one victory on appeal would be nugatory and pyrrhic: see the principles Mostyn J derived from the leading authorities and from a decision of Hong Kong's chief judge in NB v Haringey LBC [2011] EWHC 3544, [2012] 2 FLR 125.[29]But F made no application for a stay, and launched no appeal until nearly 5 weeks after KL had reached England.[30]Article 3 of the Convention reads:
'The removal or the retention of the 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 State.'
[31]At first blush it would, I suggest, seem obvious that whether the removal or retention 'is in breach' of a person's rights would fall to be determined at the date of removal (at this juncture of this case) or at the date of retention (when the second limb of F's Hague case is considered, below). It might also appear that this is the defining moment governing whether the relevant act is or is not wrongful, and that that characterisation of the act, either way, applies for all time and is the basis from which parents and courts can reasonably proceed. In short therefore I start from the proposition that F's rights of custody were not breached in August 2011 by KL's court-sanctioned removal.[32]But not so, urges F. Any characterisation of M's August 2011 removal of KL as legitimate in view of the unstayed and unappealed order apparently entitling her to remove him when she did should be regarded as provisional only. And the effect of the successful appeal over a year later, setting aside that return order, is nothing less than to erase it ab initio and thus to render the removal retrospectively wrongful, irrespective of intervening events. In consequence, it is argued, consideration of allied questions potentially affected by the characterisation of the act (such as the loss, transfer or acquisition of habitual residence) must be reassessed. Moreover, and by the same reasoning, the replacement of the Hague court's necessary finding (necessary, that is, as a pre-requisite to making the return order) that KL had been wrongfully retained in Texas by F must also be reassessed. For, at the time in March 2010 when he took over the child's care he did so pursuant to an express order now re-legitimated by the appeal court's finding that KL was then habitually resident in Texas. Thus I should hold that KL's removal from Texas in August 2011 was a removal from, rather than a return to, his territory of habitual residence.[33]I confess that I find this 'now you thought you saw it, now you didn't and it's all changed' approach not only counter-intuitive but astonishing. Is that reaction correct?[34]Mr Harrison points out in support of the 'revise it as you go along' argument, and emphasises, the use of the present tense in article 3 where a removal or retention is to be considered wrongful 'where it is in breach of rights of custody'. He maintains that KL's removal from Texas in August 2011 can now be seen to be, and as such should be treated as, a breach of F's rights of custody because, the erroneous decision of the Hague judge in Texas having been vacated, it is as if it had never been made.[35]He continues [page 2 of his closing summary submission] thus:
'If the present tense as used in article 3 were not relevant, it would be open to applicants to insist on pursuing an order for return based upon a wrongful removal/retention, even when the courts in the country of habitual residence have retrospectively endorsed the child's circumstances in the new country. Clearly, this would not meet the purposes of the Convention, and will allow disproportionate and pointless applications to be continued. The court needs to apply a purposive interpretation to the article.'
[36]I am not persuaded that such a supervening decision of the courts of the state of habitual residence, made after a Hague return is ordered by the receiving state but while it remains unexecuted, would or indeed could lead to a practical difficulty. As the objective of Hague is the child's prompt return to the country of the child's habitual residence so that that country's courts can determine welfare issues it would indeed be perverse in such circumstances for what will have become a superseded and redundant Hague order to be enforced. Were it to be so the original remover would be authorised by the home court's order to remove the child again to the receiving state. That to and fro would be pointless and disruptive. I am not aware of such a case but can conceive only that the Hague return order would either be discharged on application, or if that course were not permissible in the relevant jurisdiction that it would be swiftly set aside on appeal.[37]Next Mr Harrison suggests that now, notwithstanding the reversal of the US Hague order, to treat KR's August 2011 removal to England as lawful would be damaging to comity and to the proper operation of the Convention worldwide. The damage envisaged is that if it is correct (as I apprehend it to be) that physical return of the child pursuant to a Hague return order is irreversibly not wrongful even if the order is successfully appealed, then countries which do not presently do so will feel obliged to shift their practice so as more readily to grant a stay pending appeal. In jurisdictions where the appeal process is likely to take many months the consequence would be to defeat the 'hot pursuit, robust appraisal, forthwith return' philosophy of the Convention.[38]Mr Harrison draws attention to a survey of the way in which different states organise issues of enforcement, stay and appeal contained in the 'Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part Roman IV: Enforcement' and its precursor 'Enforcement of Orders made Under the 1980 Convention – A Comparative Legal Study.' Leaving aside that there do appear to be some footnote references in relation to the English practice which are inaccurate or at least misleading, true it is that the time which can run pending appeal is often very considerable, and therefore inimical to the interests of the children concerned. They find themselves in a sort of Hague triangle limbo, marooned in a jurisdiction from which their return has been ordered but becalmed by extended uncertainty whether they will in the event go or stay.[39]Of course I see the dilemma: either impose no stay and accept the child may have been returned before the appeal is allowed, if that be the result, whereupon retrieving the situation is likely to require engagement and further proceedings in the home state without certainty of outcome, on the one hand. Or detain the child pending appeal in a country from which, if the appeal against the return order is unsuccessful, Hague principles predicate return 'forthwith'.[40]But, as it seems to me, an equally and obviously unsatisfactory situation could arise if Mr Harrison's interpretation is correct. In this case, he suggests, the August 2011 return to England, if ever it was lawful, became retrospectively a wrongful removal when the appeal court overturned the Hague[41]As it is, the Supreme Court may within months declare moot and thus void or otherwise reverse the appeal court's decision. I cannot possibly venture to predict the outcome and, as noted, neither party suggests we should in these proceedings abide it. But, if moot the appeal court reversal is found to have been, then logically it would (and maybe at some future stage of this litigation will) be argued for M that that would resurrect the lawfulness of her August 2011 removal. Can it be the effect of the use of the word 'is' on which the argument largely hinges, and/or required by policy considerations that there should in such circumstances be a third review and a second change of direction concerning the lawfulness of a removal or retention, in what in this case will be approaching 2 years after the event? I think not: the Convention was framed to provide clarity and a firm foundation to assess the legitimacy of cross-border moves of children, not a quicksand nor a quagmire.[42]It is true that the dilemma on which the discussion focuses does not operate anything like so harshly in relation to return orders made by London courts. We are fortunate that whether by luck or good management our procedures in relation to appeals usually run speedily and effectively. Unless and until a staying order is made by the first instance judge or by the Court of Appeal the order's effect is neither postponed nor delayed. If, when a return order is made, the losing parent indicates an intention to appeal (or that time for consideration whether or not to appeal is sought) the first instance judge is likely to leave to the Court of Appeal the decision whether the required permission to appeal should be granted, but will meanwhile very often grant a temporary moratorium to cover what is likely to be at most a few days' interval before the Court of Appeal can be invited to permit the appeal to proceed and to consider extending the stay. A very early date for the appeal will be set, which may again be but a few days later.[43]The whole process is therefore very swift, and the resultant period of delay and uncertainty much curtailed by comparison with many other legal systems (and they would include the United States). In this case for instance, as we know, the first appeal process took a year, and as a result of the steps taken in the Supreme Court the case remains still unconcluded.[44]Far be it for any one jurisdiction's courts to attempt other than by example, assisted by judicious behind-the-scenes exhortations at the regular Hague Conference Special Commission meetings, to persuade other states to change their practices and procedures. But the better outcome, for all concerned in these particularly anxious cross-border family disputes concerning children, would be for appeals to be expedited, rather than to introduce a fluctuating and unstable concept of wrongfulness through the prism of which a child's situation would diffract differently each time the validity of an order was successfully impugned on appeal. That would be a recipe for confusion, expense and above all delay.[45]For my part that is sufficient conclusively to dispose of F's Hague case based on the allegation that, with the revisionary hindsight wrought by the successful appeal, KR was wrongfully removed from Texas on 14 August 2011. Clearly (and so indeed it was found by the appeal court) F was exercising rights of custody in relation to KL at the time from March 2010 through to August 2011 when they lived together. But it seems to me that it must be the case that a Hague court-mandated removal of a child to remedy anterior wrongful removal or retention does not in turn constitute a breach of rights of custody of the parent found responsible for the wrongful act. Nor does it become so if subsequently on appeal that parent is exonerated: one cannot in this context make water flow back under the bridge. So that it seems self-evident to me that, in these proceedings, M's removal of KL to England in August 2011 was neither wrongful at the time it took place, nor in breach of H's undoubted rights of custody.

Did M thereafter wrongfully retain KL in England?

[46]The second limb of F's Hague application stands or falls on the question whether, again within the terms of article 3, M wrongfully retained KR in England once, on 31 July 2012, the appeal court had reversed the Hague decision pursuant to which she brought him here on 14 August 2011. Mr Harrison argues that that was indeed the automatic consequence of the appeal court order to 'vacate the district court's order and render judgment in [F]'s favor' because it removed the legitimacy of KL's removal here which I have found the Hague order gave her.[47]That appeal court judgment and order were followed on 29 August 2011 by what I cannot help suspecting (but do not find) was a questionable order of the District Court judge. It is common ground that he made it without prior application by either party and therefore on his own initiative and in the absence of any representation or opportunity for submissions. The District Court judge (as I have observed, the same judge as had made the erroneous Hague return order) recited passages from the appeal court's judgment, and added that M was obliged to comply with the March 2010 custody order. To 'comply with the Fifth Circuit's judgment mandate' his order concludes 'M must return KL to the United States which is the country of the child's habitual place of residence; M must return KL to the custody of the possessory parent, F; and the parties must comply with the Texas state court's decision regarding possession and custody of the child going forward.'[48]There is reason to infer that that judge regarded that order as no more than a tidying up operation to put beyond doubt what he saw as the automatic consequence of the appeal court decision. I say that because when M sought an emergency stay of that 29 August 2012 order (pending her proposed Supreme Court appeal) he refused on the basis that the power to stay was not exercisable by him but at that stage only by the appeal court. However, his order relaying that decision and dated 19 September 2012 describes his 29 August order as 'simply instructing the parties that they must comply with the Fifth Circuit's judgment and mandate.' It may be material that the appeal court's order contained no express 'mandate' requiring such return and handover. M in the event did not pursue the matter of a stay at appeal court level.[49]With hindsight, perhaps it might have been material to have expert evidence of Texan law concerning the validity and effect of that order. But I am mindful that I have none, and so shall evaluate the order, relied upon by F as part of his retention case, on the basis that this 'instruction' is indeed tantamount to an order for KL's return to Texas.[50]That however does leave open the question whether I should treat M's failure to comply with it as constituting a Hague retention. It could only be so if at that time KL was habitually resident in Texas, which is the next vexed question.

Where was KL habitually resident in July and August 2012?

[51]If he was by then habitually resident in England then two consequences flow. There was no possible room for F's assertion that M then abducted him from Texas by retaining him in England. And second, arguably, that jurisdiction over KL in welfare matters was no longer exercisable by the Texas courts, but had shifted to England where both parties were by now already engaged (until the stay imposed as an automatic consequence of the institution of the Hague proceedings) in cross-applications for his residence.[52]I heard and have considered extensive submissions and citations relied upon by each party in connection with the development and current status and meaning of the concept of habitual residence: both as a matter of the domestic law of England and Wales; conventionally, as in the context of this (and other) Hague Conventions; and regulatorily, by which I mean in the context of European Union Regulations and most notably the Brussels II Revised Regulation. I hope I do not dash expectations, but at the end of it all I take the view that nuances and shades of meaning and description (and perhaps of translation, about which I shall say something at the end), and whether or not the law has achieved 'osmosis' (as, to adopt Mr Harrison's verb, envisioned by Ward LJ in Re H-K (Habitual Residence) [2011] EWCA Civ 1100, [2012] 1 FLR 436) do not impact on the outcome.[53]By last spring and summer therefore I conclude that KL's 'centre of interest' was England, and here the terrain on which he was growing up and would continue to do so indefinitely, pending any welfare-based decision providing for his return to America. His practical ties with America were sundered. He was not only resident here but firmly so for what, the vagaries of life apart, looked likely to be an indefinite but by no means necessarily brief or delimited period. I reject the suggestion that his stay here was perforce provisional or conditional because of the pendency of the US appeal proceedings. And so I hold that by 31 July 2012 (when the appeal court set aside the August 2011 Hague order) and by 29 August 2012 (when the District Court Judge relayed his instruction) KL had become habitually resident in England and Wales – on whatever test.[54]The appeal court decision arrived but a fortnight before the first anniversary of KL's arrival in London. When M brought KL to England in August 2011, lawfully as I have found, she was bringing him to a country where she had lived since sometime in 2008, and where both she and KL have the right to remain. She plainly, for her part, was no longer habitually resident in Texas (as I assume she had become when the parties lived together as a family), but by 2011 on any reading of the meaning of habitual residence and how it is lost/transferred/acquired she must have become habitually resident in England.[55]So far as KL is concerned, I cannot accept as well-founded a central proposition relied on by F that KL's Texan habitual residence (attained at the latest during the time he spent living there with F between March 2010 and August 2011) was somehow fixed in aspic and held in suspense for the year during which the Hague return order was subject to pending appeal. That proposition would introduce a legal figment into what has so often been described as essentially a factual question.[56]Nor do I accept the proposition that, pending the outcome of that appeal, KL's presence here fell to be categorised as temporary or transient. He may ultimately return to Texas if F pursues and prevails in his residence application, but the status of the Hague order pending appeal and thereafter has, in my view, no impact on the quality of KL's stability here and does not preclude him in any way from establishing his habitual residence here.[57]I therefore reject the submission that 'it is consistent with the purposes and philosophy of the Convention to determine that a removal prior to the exhaustion of the appeals process does not cause a change in the child's habitual residence.'[58]Apart from the artificiality of stopping time in a situation where time's passage is a component of the transfer or acquisition of habitual residence, this would produce a sharp contradistinction between Hague practice and that which operates in a situation where the Brussels II Revised Regulation applies. I have in mind the provisions of the code concerning parental responsibility comprised in articles 8 to 15 of the Regulation. Article 8 lays down the general rule that in cases within its scheme the habitual residence of a child is the foundation of jurisdiction. Article 10 sets out a series of considerations, compliance with any one of which leads to a shift of jurisdiction away from the state which, before an abduction, was where the child was habitually resident. But it is clear from the terms of that provision that it operates upon the basis that a child may acquire a changed habitual residence before jurisdiction shifts: whereas the outcome contended for by F in this case would prevent habitual residence changing in analogous circumstances. This would be to open up a chasm in the operation of the Hague Convention because article 60 of the Brussels II Revised Regulation stipulates that it takes precedence over the Child Abduction Convention 'in relations between Member States [i.e. EU Member States other than Denmark]'. The result, it seems to me, would be that two different rules would apply to abduction cases the subject of Convention applications, depending on whether they were intra-EU or extra-EU. Such a result, I suggest all would agree, would be profoundly regrettable and is therefore by any possible means to be averted. Thankfully it can be so, by rejecting the 'let us wait and see what happens on appeal' approach Mr Harrison would have me adopt.[59]F's second set of Hague proceedings, issued promptly after these events on 20 September 2012, must therefore founder at the outset, because it follows that: a) The reversal of the Hague order by the appeal court cannot of itself amount to a 'mandate' that KL be returned to Texas, a territory of which he had by that time ceased to be a habitual resident. b) The order of 29 August 2012, assuming the judge had the jurisdiction to make it in terms of Texas law and procedure, is nevertheless ineffectual so far as the London court is concerned, because this court at the time of that order was seised of proceedings concerning KL's welfare and residence (custody) in order to determine counter-applications launched in October 2011 (by M) and March 2012 (by F) – albeit that those applications became and for the moment remain stayed during the pendency of the Hague proceedings. c) The English court rather than the Texan court therefore validly has jurisdiction in relation to welfare issues concerning KL. d) Without intending disrespect to the Texan court, the English court should not order KL's return to Texas save on a basis determined by his welfare. e) The concept of automatic re-return of a child in response to the overturn of the Hague order pursuant to which he came here is unsupported by law or principle, and would in this case be deeply inimical to KL's best interests, interests which become this court's paramount concern once F's Hague applications fall away, as I determine they now do.

The Hague defences

[60]On the basis of these findings it is unnecessary to consider the article 13 defences of consent/acquiescence and the proposition that return to America would give rise to a grave risk to KL of physical or psychological harm or would place him in an intolerable situation.

Article 18 of the Convention and the inherent jurisdiction to order return

[61]Article 18, very brief and to the point, adds nothing to the debate. It provides that the provisions of articles 8 to 19 inclusive (the Chapter of the Convention governing the return of children) 'do not limit the power of a judicial or administrative authority to order the return of the child at any time.'[62]KL's welfare is the test which guides the making or refusal of a return order, now that return under Hague is no longer an issue. The consideration that in March 2010 the Texan court conducted a full welfare enquiry, made findings and reached a conclusion that KL should live with F is not, in my judgment, to be regarded as a factor which should impel or even provisionally incline this court to order his return at this stage to America for a renewed enquiry now to be undertaken there. Much water has flowed, much of it irreversibly as I have found, under the bridge in KL's life in the intervening almost 3 years. His recent past is here. It is against the backcloth of his current setting that reappraisal must take place and the strength of what for him has become the status quo taken into account, as one consideration. That assessment can immeasurably more easily (and I suspect, although I cannot be sure, with appropriate directions more speedily) take place here where his recent history is and where I have concluded he is by now habitually resident.[63]So the question becomes whether I can on the information presently available to this court reasonably conclude that to leave his mother and London for his father and San Antonio would, at this point, be in his best interests.[64]The fact that F can be presented as the wronged parent in all this; as a victim of what are claimed to be M's machinations and of the Texan District Court's erroneous August 2011 decision to send KL to England; whose relationship with KL is consistently under threat as a result of what he says is M's antagonism towards and obstruction of that relationship – all these considerations may well evoke sympathy in the mind of the judge considering the best outcome for KL. But it is trite to observe that righting wrongs done to one parent is not the object of that exercise. The assessment must focus on the paramountcy of the child's welfare.[65]This is not a case where I would begin to feel justified in making what would be a peremptory return order. I have heard evidence from neither party nor from any witness. I have no CAFCASS report directed, as I would need as the barest minimum, to the degree to which KL is secure and settled in his current situation, to ascertain whether he thrives and what he may lack, and importantly to provide some assessment of the likely impact on him of a move from M to F and from London to Texas.[66]The 14 considerations canvassed on the final pages of F's opening position statement neither individually nor collectively persuade me to the conclusion F invites me to reach, nor does anything since then said on the topic.[67]In reaching that conclusion I have taken into account the reasoning and outcome in the Court of Appeal decision in Re K (Abduction: Consent: Forum Conveniens) [1995] 2 FLR 211, also a Texas case which does indeed share some striking similarities with this. But as Mr Harrison recognises, each case turns on its own facts and Re K is merely illustrative of the approach of that court to the facts of that case in those days.

In conclusion

[68]I am of course prepared to give directions for the cross-residence applications, with a view to bringing them to effective hearing as fast as possible, with firm contact arrangements meanwhile.[69]I recognise that the style and content of this judgment are unconventional, but not I hope unacceptable. My conclusions have been clear in my own mind and I hope they read clearly on paper. I worry that the parties may now be themselves so well steeped in the intricacies of this area of law, both here and as it operates in Texas, that they may in the course of this enduring and yet unconcluded litigation, now spanning nearly 5 years of KL's six, have lost sight of the wood for the trees to some extent. These parents share not only a desire to have KL living with them, but also parental responsibility for him. It may help them to reappraise their situations in the light of plain principles plainly expressed, with the reminder that this Convention was designed to try to ensure that abducted children's cases are heard in the most appropriate court, and not that the Convention itself be used as an instrument for continuing and repetitive disruption.[70]Nor have I set out to be dismissive of the skill, care and knowledge which went into the lawyers' preparations for this case. I have resisted the temptation to go down beguiling avenues developed in their submissions and in the documents and on the authorities. I confess that I have over the years developed a mounting sense of frustration at the degree of sophistication with which the Hague Abduction Convention (and also some other acts and instruments) have become encrusted. This is another area where I recognise that the water cannot be pushed back beyond the bridge, but on this occasion I have tried to do so.

Endnote

[71]I do wish however to add some observations on the English-language report of the case of Mercredi v Chaffe, a decision of the Court of Justice of the European Union (CJEU Case C-497/10), reported at [2011] 1 FLR 1293. My comments are obiter as far as the instant case is concerned, as what I will point out has not affected my conclusions one way or the other: but still they may be of some and it may even be more than mere passing interest in relation to the quest for autonomous rationalisation of the concept of habitual residence, consistently across international instruments, now so central to so many cross-border cases affecting adults just as much as children.[72]The question I would like to pose is whether the use of the word 'permanent' and its cognate 'permanence' in the English-language version of the judgment published on the curia.europa.eu website is fair and accurate; or at least whether it should be understood as signifying a state of affairs which can be less than completely permanent.[73]I observe first that in the earlier CJEU decision where the test for habitual residence was described, Re A (Area of Freedom, Security and Justice) (C523/07), [2009] 2 FLR 1 the concept of permanence finds no place in the English text which (taken from the website) proceeds thus: [44] Therefore, the answer to the second question is that the concept of 'habitual residence' under Article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.[74]But when the CJEU addressed the question again in Mercredi, although there was no express intention stated to depart from the Re A formulation referred to apparently approvingly at [47, 48 and 50], the English text for the relevant passage on the Europa website proceeds thus (with instances of the use of permanent/permanence highlighted by me): 44 … it must first be observed that the Regulation contains no definition of the concept of 'habitual residence'. It merely follows from the use of the adjective 'habitual' that the residence must have a certain permanence or regularity. 45 According to settled case law, it follows from the need for a uniform application of European Union law and the principle of equality that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (see, inter alia, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C 98/07 Nordania Finans and BG Factoring [2008] ECR I 1281, paragraph 17; and Case C 523/07 A [2009] ECR I 2805, paragraph 34). 46 Since the articles of the Regulation which refer to 'habitual residence' make no express reference to the law of the Member States for the purpose of determining the meaning and scope of that concept, its meaning and scope must be determined in the light of the context of the Regulation's provisions and the objective pursued by it, in particular the objective stated in recital 12 in the preamble to the Regulation, that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. 47 To ensure that the best interests of the child are given the utmost consideration, the Court has previously ruled that the concept of 'habitual residence' under Article 8(1) of the Regulation corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national court, taking account of all the circumstances of fact specific to each individual case (see A, paragraph 44). 48 Among the tests which should be applied by the national court to establish the place where a child is habitually resident, particular mention should be made of the conditions and reasons for the child's stay on the territory of a Member State, and the child's nationality (see A, paragraph 44). 49 As the Court explained, moreover, in paragraph 38 of A, in order to determine where a child is habitually resident, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent. 50 In that context, the Court has stated that the intention of the person with parental responsibility to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or rental of accommodation in the host Member State, may constitute an indicator of the transfer of the habitual residence (see A, paragraph 40). 51 In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case. 52 In the main proceedings, the child's age, it may be added, is liable to be of particular importance. 53 The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant. 54 As a general rule, the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of. 55 That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where, as in the main proceedings, the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard, the tests stated in the Court's case-law, such as the reasons for the move by the child's mother to another Member State, the languages known to the mother or again her geographic and family origins may become relevant. 56 It follows from all of the foregoing that the answer to the first question is that the concept of 'habitual residence', for the purposes of Articles 8 and 10 of the Regulation, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.[75]This is in marked contrast and, I suggest, to the terminology used in the official French-language version of the judgement, of which below are set out in full the same paragraphs, with the same passages emphasised: 44 … il y a lieu de constater, à titre liminaire, que le règlement ne comporte aucune définition de la notion de «résidence habituelle». L'utilisation de l'adjectif «habituelle» permet simplement de déduire que la résidence doit présenter un certain caractère de stabilité ou de régularité. 45 Selon une jurisprudence constante, il découle des exigences tant de l'application uniforme du droit de l'Union que du principe d'égalité que les termes d'une disposition du droit de l'Union qui ne comporte aucun renvoi exprès au droit des États membres pour déterminer son sens et sa portée doivent normalement trouver, dans toute l'Union européenne, une interprétation autonome et uniforme qui doit être recherchée en tenant compte du contexte de la disposition et de l'objectif poursuivi par la réglementation en cause (voir, notamment, arrêts du 18 janvier 1984, Ekro, 327/82, Rec. p. 107, point 11; du 6 mars 2008, Nordania Finans et BG Factoring, C-98/07, Rec. p. I-1281, point 17, ainsi que du 2 avril 2009, A, C-523/07, Rec. p. I-2805, point 34). 46 Les articles du règlement qui évoquent la notion de «résidence habituelle» ne comportant aucun renvoi exprès au droit des États membres pour déterminer le sens et la portée de ladite notion, cette détermination doit être effectuée au regard du contexte dans lequel s'inscrivent les dispositions du règlement et de l'objectif poursuivi par ce dernier, notamment celui qui ressort du douzième considérant du règlement, selon lequel les règles de compétence qu'il établit sont conçues en fonction de l'intérêt supérieur de l'enfant et, en particulier, du critère de proximité. 47 Afin que cet intérêt supérieur de l'enfant soit respecté au mieux, la Cour a déjà jugé que la notion de «résidence habituelle», au sens de l'article 8, paragraphe 1, du règlement, correspond au lieu qui traduit une certaine intégration de l'enfant dans un environnement social et familial. Ce lieu doit être établi par la juridiction nationale en tenant compte de l'ensemble des circonstances de fait particulières de chaque cas d'espèce (voir arrêt A, précité, point 44). 48 Parmi les critères à la lumière desquels il appartient à la juridiction nationale d'établir le lieu de la résidence habituelle d'un enfant, il convient de relever notamment les conditions et les raisons du séjour de l'enfant sur le territoire d'un État membre, ainsi que la nationalité de celui-ci (voir arrêt A, précité, point 44). 49 Comme la Cour l'a, par ailleurs, précisé au point 38 de l'arrêt A, précité, afin de déterminer la résidence habituelle d'un enfant, outre la présence physique de ce dernier dans un État membre, d'autres facteurs supplémentaires doivent faire apparaître que cette présence n'a nullement un caractère temporaire ou occasionnel. 50 Dans ce contexte, la Cour a souligné que l'intention du responsable parental de s'établir avec l'enfant dans un autre État membre, exprimée par certaines mesures tangibles telles que l'acquisition ou la location d'un logement dans l'État membre d'accueil, peut constituer un indice du transfert de la résidence habituelle (voir arrêt A, précité, point 40). 51 … il y a lieu de souligner, afin de distinguer la résidence habituelle d'une simple présence temporaire, que celle-ci doit en principe être d'une certaine durée pour traduire une stabilité suffisante. Cependant, le règlement ne prévoit pas de durée minimale. En effet, pour le transfert de la résidence habituelle dans l'État d'accueil, compte surtout la volonté de l'intéressé d'y fixer, avec l'intention de lui conférer un caractère stable, le centre permanent ou habituel de ses intérêts. Ainsi, la durée d'un séjour ne saurait servir que d'indice dans le cadre de l'évaluation de la stabilité de la résidence, cette évaluation devant être effectuée à la lumière de l'ensemble des circonstances de fait particulières du cas d'espèce. 52 Dans l'affaire au principal, l'âge de l'enfant est, de surcroît, susceptible de revêtir une importance particulière. 53 En effet, l'environnement social et familial de l'enfant, essentiel pour la détermination du lieu de sa résidence habituelle, est composé de différents facteurs variant en fonction de l'âge de l'enfant. Ainsi, les facteurs à prendre en considération dans le cas d'un enfant en âge scolaire diffèrent de ceux qu'il y a lieu de retenir s'agissant d'un mineur ayant terminé ses études ou encore de ceux qui sont pertinents en ce qui concerne un nourrisson. 54 En règle générale, l'environnement d'un enfant en bas âge est essentiellement un environnement familial, déterminé par la personne ou les personnes de référence avec lesquelles l'enfant vit, qui le gardent effectivement et prennent soin de lui. 55 Cela est vérifié a fortiori lorsque l'enfant concerné est un nourrisson. Celui-ci partage nécessairement l'environnement social et familial de l'entourage dont il dépend. Par conséquent, lorsque, comme dans l'affaire au principal, le nourrisson est effectivement gardé par sa mère, il y a lieu d'évaluer l'intégration de celle-ci dans son environnement social et familial. À cet égard, les critères énoncés par la jurisprudence de la Cour, tels que les raisons du déménagement de la mère de l'enfant dans un autre État membre, les connaissances linguistiques de cette dernière ou encore ses origines géographiques et familiales peuvent entrer en ligne de compte. 56 Il découle de tout ce qui précède qu'il convient de répondre à la première question que la notion de “résidence habituelle”, au sens des articles 8 et 10 du règlement, doit être interprétée en ce sens que cette résidence correspond au lieu qui traduit une certaine intégration de l'enfant dans un environnement social et familial. À cette fin, et lorsque est en cause la situation d'un nourrisson qui séjourne avec sa mère depuis quelques jours seulement dans un État membre autre que celui de sa résidence habituelle, vers lequel il a été déplacé, doivent notamment être pris en considération, d'une part, la durée, la régularité, les conditions et les raisons du séjour sur le territoire de cet État membre et du déménagement de la mère dans ledit État, et, d'autre part, en raison notamment de l'âge de l'enfant, les origines géographiques et familiales de la mère ainsi que les rapports familiaux et sociaux entretenus par celle-ci et l'enfant dans le même État membre. Il appartient à la juridiction nationale d'établir la résidence habituelle de l'enfant en tenant compte de l'ensemble des circonstances de fait particulières de chaque cas d'espèce.[76]The cross-Channel shift can more starkly be seen if the relevant versions are juxtaposed, thus: [44] un certain caractère de stabilité ou de régularité a certain permanence or regularity [50] s'établir avec l'enfant dans un autre État member to settle permanently with the child in another Member State [51] une certaine durée pour traduire une stabilité suffisante a certain duration which reflects an adequate degree of permanence and d'y fixer, avec l'intention de lui conférer un caractère stable, le centre permanent ou habituel de ses intérêts to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character and la durée d'un séjour ne saurait servir que d'indice dans le cadre de l'évaluation de la stabilité de la résidence the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence[77]‘Stability ‘has a quite different connotation from ‘permanence’. ‘To establish oneself somewhere with a child’ is by no means necessarily the same as ‘to settle permanently with the child’.[78]Moreover when one looks at what is described as the Ruling of the court (where in the French fashion the court ‘dit pour droit’, or pronounces what the law is) at the conclusion of the judgement one finds an English and a French text which, I suggest, are essentially more harmonious then would appear from the highlighted contrasts, precisely because permanence as a concept is absent from both versions: La notion de “résidence habituelle”, au sens des articles 8 et 10 du règlement (CE) n° 2201/2003 du Conseil, du 27 novembre 2003, relatif à la compétence, la reconnaissance et l'exécution des décisions en matière matrimoniale et en matière de responsabilité parentale abrogeant le règlement (CE) n° 1347/2000, doit être interprétée en ce sens que cette résidence correspond au lieu qui traduit une certaine intégration de l'enfant dans un environnement social et familial. À cette fin, et lorsque est en cause la situation d'un nourrisson qui séjourne avec sa mère depuis quelques jours seulement dans un État membre autre que celui de sa résidence habituelle, vers lequel il a été déplacé, doivent notamment être pris en considération, d'une part, la durée, la régularité, les conditions et les raisons du séjour sur le territoire de cet État membre et du déménagement de la mère dans ledit État, et, d'autre part, en raison notamment de l'âge de l'enfant, les origines géographiques et familiales de la mère ainsi que les rapports familiaux et sociaux entretenus par celle-ci et l'enfant dans le même État membre. Il appartient à la juridiction nationale d'établir la résidence habituelle de l'enfant en tenant compte de l'ensemble des circonstances de fait particulières de chaque cas d'espèce. …and … 79. The concept of ‘habitual residence’, for the purposes of Articles 8 and 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 , must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.

…and …

[79]I have invited attention to the French version first, because although the ‘language of the case' is noted at the foot of each version to the English, the language of the judgement is French (as, I have to say, had seemed to me likely when I came across the apparent contradictions in the text). That would also explain why the German-language version looks even to my inexpert eye to have derived from the French, rather than an English, as its original.[80][Note: these versions of the judgment can be found at: C-497/10 French textC-497/10 English text ] I must thank Mr Setright for drawing to my attention what follows, which is copied from the curia.europa.eu website: when, on the page http://curia.europa.eu/juris/recherche.jsf?language=en&jur=C,T,F&td=ALL&parties=Mercredi ‘Mercredi’ is inserted, and the page is completed by, above and to the right of ‘authentic language' ticking both the boxes ‘language of the case’ and ‘language of the opinion’ , and with ‘English’ inserted (by the use of the icon on the right side of the page); and when, with this done, ‘search’ is clicked, the site then goes to a new page, and when the icon on the right of the reference is clicked, on the bottom of new page: http://curia.europa.eu/juris/fiche.jsf?id=C%3B497%3B10%3BRP%3B1%3BP%3B1%3BC2010%2F0497%2FJ&pro=&lgrec=en&nat=&oqp=&dates=&lg=EN%252C%252Btrue%252Ctrue&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&td=ALL&pcs=O&avg=&mat=or&parties=Mercredi&jge=&for=&cid=1200751 the lower part of which is copied below, the following is found: Procedural Analysis Information … Language(s) of the Case English Language(s) of the Opinion French[81]I appreciate that there have been (at least) two expressions of judicial unease about the use of ‘permanence’ in the context of determining habitual residence. Thus in Re H-K (Habitual Residence) [2011] EWCA Civ 1100, [2011] 2 FLR 436 Ward LJ at [17 and 18] cautioned against taking the use of ‘permanent’ in Mercredi too literally; and Holman J in FVS v MGS (Habitual Residence) [2011] EWHC 3139 (Fam), [2012] 1 FLR 1184 at [46] suggested that ‘the word “permanence” is not used by the Court of Justice of the European Union in the sense of “forever” or even necessarily “indefinite”. The contrast is with temporary.’ But now, I suggest, a very sound basis for downplaying (if not indeed for eliminating) the implications of permanence as an ingredient of habitual residence is reinforced upon the basis of internal analysis of the English-language judgement in the light of its derivation from a French-language original.

order

and thus KL should now return to Texas pursuant to the further Hague order which I should make. I described this just a few lines up as 'equally unsatisfactory', but in truth of course it would be far more unsettling for KL now once more to be shipped like a shuttlecock back to the States than if a stay had been granted pending appeal and he had remained in Texas for that intervening year.

Cited in 9 later judgments