AR v RN (Scotland) [2015] UKSC 35

A French father sought the return of his two young daughters from Scotland under the Hague Convention, arguing they remained habitually resident in France. The Supreme Court dismissed his appeal, holding the children had become habitually resident in Scotland after four months of stable residence.

Facts

The two children, born in France in August 2010 and June 2013, were the daughters of a French father and a British-Canadian mother who had never married. The family lived together in France until July 2013, when the mother and children moved to Scotland with the father’s agreement. The parties disputed the long-term plan: the father said the move was for the duration of the mother’s 12-month maternity leave, while the mother said the family intended to leave France permanently though not necessarily settle in Scotland. It was uncontroversial that the mother and children would live in Scotland for around a year from July 2013.

After arriving in Scotland, the mother and children initially lived with the maternal grandparents. The family home in France was sold in August 2013 (completed two months later). The elder child began attending the local nursery in Scotland in August 2013. The father visited monthly, and the mother and children visited France in September and October 2013. In late October 2013, the mother and children moved into a rented house adjacent to the maternal grandparents. On 9 November 2013, the mother discovered the father’s infidelity and ended the relationship. On 20 November 2013, the father was served with Scottish proceedings seeking a residence order and interdict against removal. The father then brought proceedings under the Child Abduction and Custody Act 1985, alleging wrongful retention.

Issues

The central issue was whether the children were habitually resident in France or in Scotland immediately before 20 November 2013, for the purposes of article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Arguments

Father (Appellant)

The father contended that the Lord Ordinary had made no error of legal approach, and the Inner House had been wrong to interfere with the first instance evaluation. He argued the stay in Scotland was intended to be limited to the period of the mother’s maternity leave, and that the absence of a joint intention to relocate permanently meant the children retained their habitual residence in France. He also argued the Extra Division had erroneously focused only on the children’s circumstances in Scotland, neglecting the parents’ agreement as to limited duration.

Mother (Respondent)

The mother argued the children had become habitually resident in Scotland by virtue of their integration into a stable social and family environment there. She also sought to raise (though not previously argued below) the question of whether bringing residence proceedings could amount to wrongful retention under the Convention.

Judgment

Lord Reed, giving the unanimous judgment, dismissed the appeal. He restated the principles governing habitual residence as set out in A v A [2013] UKSC 60, In re L [2013] UKSC 75, and In re LC [2014] UKSC 1, and confirmed their consistency with the case law of the Court of Justice of the European Union in Proceedings brought by A, Mercredi v Chaffe, and C v M.

Key principles affirmed included: habitual residence is a question of fact involving an evaluation of all relevant circumstances; the focus is on the situation of the child and the degree of integration into a social and family environment; for infants, this requires assessing the integration of the primary carer; parental intentions are relevant but not decisive; and it is the stability of the residence, not its permanence, which matters. Lord Reed emphasised that there is no minimum required period of residence and no requirement of a parental intention to reside permanently or indefinitely.

The Lord Ordinary had erred by focusing exclusively on whether there was a joint parental intention to relocate permanently to Scotland. This led him to ignore the abundant evidence concerning the stability of the mother’s and children’s lives in Scotland and their integration into the social and family environment there. The Extra Division had correctly identified this error.

Lord Reed rejected the father’s criticism of the Extra Division. They had assumed, in the father’s favour, that the stay was originally intended to be limited to 12 months, but rightly concluded that the children’s life in Scotland nonetheless had the necessary quality of stability — their home, social life, and predominant family life were there. The Extra Division was therefore entitled to find four months sufficient in the circumstances to establish habitual residence in Scotland.

Lord Reed also confirmed, citing In re H [2014] EWCA Civ 1101, that there is no rule that one parent cannot unilaterally change a child’s habitual residence. The function of an appellate court in reviewing a finding of habitual residence is limited: provided the correct legal principles have been applied, the evaluation may only be challenged if the conclusion was not reasonably open to the lower court.

As the children were habitually resident in Scotland on the relevant date, there could be no wrongful retention. The questions regarding wrongful retention by the issuing of proceedings, and consent under article 13, did not arise.

Implications

The decision reinforces the now-settled approach to habitual residence in the United Kingdom: it is a fact-sensitive, child-focused inquiry into the degree of integration in a social and family environment, aligned with the jurisprudence of the Court of Justice of the European Union. The judgment confirms that:

• Stability of residence, not permanence, is the touchstone.
• An intention to reside in a country for a limited period is not inconsistent with the acquisition of habitual residence there.
• Joint parental intention to relocate permanently is not an essential requirement for a change in habitual residence.
• Periods as short as four months may be sufficient, depending on the wider circumstances and degree of integration.
• Appellate courts should not interfere with a properly grounded factual evaluation unless it was not reasonably open to the lower court.

The judgment is significant for family law practitioners advising on international relocation and Hague Convention proceedings, particularly where parents have agreed to a time-limited move. It clarifies that such arrangements do not preclude a child from acquiring habitual residence in the destination state. The decision matters to parents, children, and practitioners involved in cross-border family disputes, and emphasises the limited scope for appellate intervention in habitual residence determinations. The case does not, however, decide the separate question of whether the commencement of domestic residence proceedings can amount to wrongful retention under the Convention — that issue was expressly left open.

Verdict: Appeal dismissed. The Supreme Court upheld the Inner House’s conclusion that the children were habitually resident in Scotland immediately before 20 November 2013, with the result that there had been no wrongful retention under article 3 of the 1980 Hague Convention.

Source: AR v RN (Scotland) [2015] UKSC 35