Rupert Chapman

At the recent Exeter Court user’s group  the Designated Family Judge drew to the attention of attendees the judgment of the Supreme Court in the case of Re LC (Children)[2014] UKSC 1. Handed down in January last year the case considers the extent to which an adolescent child’s own state of mind can be considered when deciding whether she has acquired habitual residence in this jurisdiction, as opposed to the state of mind of her resident parent.

The proceedings were brought under the Hague Convention on the Civil Aspects of International Child Abduction. The father was from the UK and the mother was Spanish. There were four children aged 13, 11, 9 and 5. They were all born in England and were Spanish nationals. The parties separated in July 2012 and until then the family had lived in England. On their separation the mother took all four children to Spain, where they remained until December the same year when they returned for an agreed holiday with the father. He retained them in England and the mother issued proceedings for their return.

Those proceedings concluded with a judgment of Cobb J (reported at [2013] EWHC 1383(Fam)) by which the children’s return to Spain was ordered. The Judge found that the children had acquired habitual residence in Spain shortly after their arrival there and had not lost it on their return to the UK. He found that while the older child had reached an age where her objection to being returned was a relevant objection under Article 13, but that the younger children had not and that their wish to remain in the UK was a preference not an objection. He further rejected father’s contention that there was a grave and intolerable risk to the children should they be returned to Spain and that he should exercise his discretion to permit the children to remain in the UK.

Father appealed to the Court of Appeal, as did the oldest three children, having successfully engaged various solicitors themselves and sought to challenge the refusal to grant them party status. The children’s appeals were rejected by the Court, as they did also the father’s (the judgment is at [2013] EWCA Civ 1058) in respect of all but the oldest child, whose objection they felt the judge had given insufficient weight. The return order was therefore overturned in her respect. This left the Court of Appeal having to consider whether the impact of separation from that child created an intolerable situation for the younger children if they were to be returned, which necessitated a remission to the Family Division for a further hearing.

His appeal to the Supreme Court focussed on the issue of habitual residence. The Court (Lord Wilson giving the leading judgment, with which Lords Toulson and Hodge agreed) observed that as Spain is an EU nation, the provisions of Brussels IIR take precedence over the terms of the convention. The regulation provides by Recital 12 that the court of the state where a child has habitual residence should have jurisdiction to decide on her welfare. That regulation has specific and different rules regarding the return of children, in particular that where the court of a member state declines (as here) to return a child, the court of the state where the child has her habitual residence can override that order provided that the parties and the child have been given an opportunity to be heard and that such an order would not be open to challenge in the ‘requested state’ (here the UK). As such habitual residence is crucial to the decision as to whether a return order is open to challenge. If the Supreme Court were to overturn the decision on habitual residence then the Spanish Court could not overturn the decision to refuse to return the children.

Lord Wilson observed that the test in R v Barnet LBC ex p Shah [1983] 2 AC 309 had been overturned by the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60 shortly after Cobb J’s judgment and that the test for habitual residence was now the same as under BIIR – “the place which reflects some degree of integration by the child in a social and family environment”.

Habitual residence must be assessed with this in mind and it will be highly unusual for a child not to acquire habitual residence in the country to which she travels lawfully to live with a parent, however the requirement for integration permits some flexibility.

Lord Wilson held that where a child is an adolescent or has the understanding of her situation of an adolescent, particularly where the residence with the other parent is sufficiently short the assessment needs to look at all the facts, including the state of mind of the child herself (while living in the other country as opposed to her wishes at the point of the trial) as to her degree of integration into each competing state. Baroness Hale (with whom Lord Sumption agreed) agreed, though she was of the view that the same approach applies to younger children as well.

This was an explicit reversal of the statements of Lord Scarman in the Barnet case (above). It opens up the issue of habitual residence to be more than simply a surface consideration of where the child has a school, a home and so on, to also consider whether the child had settled in the new jurisdiction in their own mind and whether they had themselves committed to that home. This new avenue is remarkably close to being a welfare consideration – the child’s ‘wishes and feelings’ being treated as different to, but at least superficially very similar to, their ‘state of mind’. It is certainly a shift towards the child and away from the old-fashioned attitude of habitual residence being related to parental rights.

Taking that into account the evidence was that the three older children did not themselves feel integrated in their new community in Spain, having neither a permanent home nor friends and having not settled, the mother not having assisted them in that process. The Court therefore set aside the conclusion that the eldest child was habitually resident in Spain and remitted that issue for rehearing in the Family Division. The issue of the younger children, though not adolescents, was also remitted for rehearing on the basis that they were so close as a sibling unit that the whole needed to be considered as well as the individual position of the older child.

The court further held that the child’s welfare was the ‘threshold consideration’ for a decision of whether to join them as a party to proceedings and not simply a ‘primary consideration’. Where, as here, the child’s account of their state of mind was central it would follow that the child should be given party status. Their consideration of this issue, though focussed on convention situations, bears consideration in all proceedings where such an order is sought.