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Family Law Week: DL v EL (Hague Abduction Convention – Effect of Reversal of Return Order on Appeal)  EWHC 49 (Fam).
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.
The legal issues in the case
(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;
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.
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.
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.
Article 18 of the Convention and the inherent jurisdiction to order return
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.
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.
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).
IN THE NORTHAMPTON COUNTY COURT His Honour Arthur Anthony JUDGE RUMBELOW QC A Circuit Court Judge Assigned to the Northern Circuit.
CASE NUMBER NN13P00882
Ngozi Godwell vs Northamptonshire Local Authority