Re LC (Children) [2014] UKSC 1

A mother sought the summary return of her four children from England to Spain under the Hague Convention. The Supreme Court held that, when determining habitual residence, the state of mind of an adolescent child during her residence is a relevant factor, and remitted the issue.

Facts

The father, a UK national, and the mother, a Spanish national, were unmarried parents of four children (T, aged 13; L, aged 11; A, aged 9; and N, aged 5), all born in England, where the family had lived throughout the children’s lives. The relationship broke down in July 2012 and on 24 July 2012 the mother took the children to live with her in Spain, where they stayed with the maternal grandmother and attended local schools. On 23 December 2012 the children came to England with the father for an agreed Christmas holiday, due to return to Spain on 5 January 2013. They did not return: the boys had hidden their passports behind a microwave.

The mother issued proceedings under the Hague Convention 1980 and the Child Abduction and Custody Act 1985 for summary return. Cobb J found the father had consented to the move, that the children had become habitually resident in Spain by 5 January 2013, and ordered all four to return. The Court of Appeal upheld the finding on habitual residence but reversed the exercise of discretion in relation to T (who objected to return), remitting the question whether the boys’ return without T would place them in an intolerable situation.

Issues

The principal issue, identified by Lord Wilson, was:

Now that it is clear that the test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social and family environment there, may the court, in making that determination in relation to an adolescent child who has resided, particularly if only for a short time, in a place under the care of one of her parents, have regard to her own state of mind during her period of residence there in relation to the nature and quality of that residence?

A subsidiary issue was whether Cobb J had erred in refusing to make T a party to the proceedings under rule 16.2 of the Family Procedure Rules 2010.

Arguments

The father and T argued that Cobb J had failed properly to consider Ms Vivian’s reports of statements made by the older children indicating they had never regarded Spain as home and had not integrated there. They submitted the court should substitute a finding that the children remained habitually resident in England, so as to preclude an order under article 11(8) of Brussels II Revised by the Spanish court.

The mother relied on the objective indicia of integration: residence with maternal relatives, attendance at schools where the children performed well, the children’s bilingualism, family ties in Spain, and the father’s consent to indefinite relocation.

Judgment

Habitual residence and state of mind

Lord Wilson (with whom Lord Toulson and Lord Hodge agreed) reviewed the test for habitual residence as restated in A v A (Children: Habitual Residence) [2013] UKSC 60, namely “the place which reflects some degree of integration by the child in a social and family environment”, derived from the CJEU in Proceedings brought by A (Case C-523/07) and Mercredi v Chaffe (Case C-497/10PPU).

Lord Wilson held that, where the child is an adolescent (or has the maturity of one), and particularly where residence in the new country has been short, the inquiry into integration must encompass more than the surface features of life there. The court must be willing to consider evidence of the child’s own state of mind during the period of residence, since a mind “in a state of rebellious turmoil” about the home chosen for her may be inconsistent with significant integration. The relevant concept is not “wishes”, “views”, “intentions” or “decisions”, but state of mind during residence.

Cobb J had not addressed T’s specific statements to Ms Vivian about her state of mind during her residence in Spain in 2012 (as opposed to her present wishes in 2013). The finding that T was habitually resident in Spain on 5 January 2013 was therefore set aside and remitted to the High Court.

Lord Wilson declined to substitute a contrary finding, citing six reasons including the incidental focus of Ms Vivian’s inquiries, the timing of the statements, T’s purpose in making them, Cobb J’s prior rejection of part of T’s account, the lack of opportunity for the mother to respond, and the substantial countervailing evidence.

By a narrow margin, Lord Wilson also set aside the findings of habitual residence in respect of the three boys, principally because the four siblings were a very close unit and T’s habitual residence could be a counterweight to the mother’s habitual residence in Spain when assessing the boys’ position.

Lady Hale (with whom Lord Sumption agreed) reached the same result but on a broader basis. She held the logic of A v A and Mercredi applies equally to the younger children: the question is the quality of residence, into which subjective factors (the reasons for being in the place and perceptions of being there) feed alongside objective factors. She rejected any rule that the perceptions of younger children are irrelevant, just as A v A rejected the rule that a child automatically shares the parent’s habitual residence. Lady Hale noted:

The relevant reality is that of the child, not the parents.

Party status (subsidiary appeal)

Under rule 16.2 of the Family Procedure Rules 2010, the threshold for joining a child as a party is whether it is in the child’s best interests. Lord Wilson held that, applying paragraph 7.2(b) of Practice Direction 16A, T had a standpoint—her state of mind during her residence in Spain—incapable of being represented by either parent. The Court of Appeal should have allowed T’s appeal against the refusal of party status.

Implications

The decision confirms and refines the integration-based test for habitual residence adopted in A v A. It establishes that, for an adolescent child (or one with adolescent maturity), and especially where residence is short, the child’s state of mind during residence is a relevant factor in assessing integration into a social and family environment. Lady Hale’s broader reasoning extends this in principle to younger children too, although the weight attached will vary with age.

The judgment cautions against routine inquiry into children’s habitual residence in Hague Convention proceedings: disputes about habitual residence are statistically rare, and the courts should not allow swift return to be frustrated by such disputes. The decision is particularly significant in the unusual factual setting of an older child resident with a parent for only a short time in the suggested state of habitual residence.

On procedure, the case clarifies that the threshold for granting party status to a child under rule 16.2 is the child’s best interests, and provides guidance that party status may be appropriate where a child has a standpoint, such as their state of mind during a relevant period, which cannot be represented by either parent. The judgment also highlights the impact of article 11(8) of Brussels II Revised, which means a refusal of return to an EU state may amount only to a “breathing-space”, reinforcing the importance of correctly determining habitual residence at the outset.

The judgment is important to family practitioners, Cafcass officers and judges handling international child abduction cases, and reflects the courts’ increasing recognition of children as people with a part to play in their own lives rather than as passive recipients of their parents’ decisions.

Verdict: The Supreme Court allowed the appeals. It set aside the finding that the four children were habitually resident in Spain on 5 January 2013 and remitted that question to the High Court for fresh determination, alongside the question (previously remitted by the Court of Appeal) of whether returning the boys without T would place them in an intolerable situation. The Court also allowed T’s subsidiary appeal, holding she should have been granted party status to the proceedings.

Source: Re LC (Children) [2014] UKSC 1