Habitual Residence – Adapting to Social Change

A landmark decision was made in the Supreme Court on 15 January 2014 in the case of LC (Children) (No. 2) [2014] UKSC 1.

This case involved an English father and a Spanish mother, who had lived in the UK throughout their relationship and had four children together; T aged 13, L aged 11, A aged 9 and N aged 5.

The relationship came to an end in July 2012 and the mother relocated to Spain with all four children. The father did not directly object to this.

All four children returned to the UK in December 2012 to spend Christmas with their father. After the holiday, T, the eldest child, did not wish to return to Spain. L and A also hid their passports.

The mother made a court application under the Hague Convention for the children’s return to Spain. The father defended the application on the basis that the children were not habitually resident in Spain. He maintained that all four children were habitually resident in the UK and so, should not be removed to Spain. The father also applied for T to be joined as a party to the proceedings.

In the first instance, the court ordered that all four children should be returned to Spain as they had been wrongfully retained in the UK. It was ordered that Spain was their habitual residence. T, nor any of the other children were joined as parties to the proceedings.

The father appealed the decision in the Court of Appeal. The Court of Appeal agreed with the High Court that all four children had become habitually resident in Spain and similarly agreed that the children should not be joined as parties to the proceedings. However, the Court of Appeal reversed the judge’s decision to return T to Spain finding that T’s objections should be given very considerable weight. The Court of Appeal concluded that the appropriate question was whether it would be intolerable to return the three younger children to Spain in light of the fact that T was not going to go with them.

A further appeal was made to the Supreme Court. In a landmark decision, the Supreme Court unanimously held that T’s assertions about her state of mind during her residence in Spain in 2012 were relevant to a determination whether her residence there was habitual. The Supreme Court set aside the conclusion that T was habitually resident in Spain on 5 January 2013 and remitted the issue to the High Court for fresh consideration.

The Supreme Court also set aside the finding of habitual residence in respect of the three younger children so that the issue can be reconsidered in relation to all four children. The Supreme Court unanimously concluded that T should have been granted party status.

Lord Wilson gave the lead judgment of the Court. Courts are now required, in analysing the habitual residence of a child, to search for some integration of him or her in a social and family environment. Where a child goes to reside with a parent in a country in which that parent is habitually resident, it will be highly unusual for that child not to acquire habitual residence there too. However, in unusual cases there must be room for a different conclusion, and the requirement of some degree of integration provides such room.

At paragraph 87 of her judgment, Lady Hale sates ‘This approach accords with our increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents’ decisions’.

This decision demonstrates how the courts are adapting to social change and increased globalisation. If a court is asked to determined where a child’s home is, it is now key to consider that child’s integration in that particular country.

The decision also highlights the importance of properly preparing children for any move and helping them adapt and settle into their new life once the move has taken place.

It is interesting to note that the Supreme Court did not place as much weight on the effect of T’s siblings as the Court of Appeal. When the matter is again heard in the High Court, this is likely to be given much further consideration. However, the possible negative effect on T’s siblings will need to be carefully balanced against T’s wishes and feelings, given the decision of the Supreme Court and the comments made by the Justices.

Myerson’s expert solicitors can advise on all aspects of family law in Cheshire and South Manchester.

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