DL v EL

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 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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

On 19 September 2011, over a month after KL had gone, F lodged an appeal against the decision in the Hague Convention proceedings.

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.

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.

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.

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.

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.

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.

As an informative start, I take this verbatim from the joint letter sent to the US Supreme Court:

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.

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.

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.

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.

But F made no application for a stay, and launched no appeal until nearly 5 weeks after KL had reached England.

Article 3 of the Convention reads:

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.

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.

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?

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.

He continues [page 2 of his closing summary submission] thus:

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.

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.

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.

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'.

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 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.

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.

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.

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.

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.

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.

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.

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.'

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.

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.

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.

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.

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.

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.

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.

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.

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.'

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.

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:

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, 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.'

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:

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):

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:

The cross-Channel shift can more starkly be seen if the relevant versions are juxtaposed, thus:

‘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’.

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:

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.

[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:

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.