Family Law Hub

LC (Children) (No 2) [2014] UKSC 1

Appeal against the Court of Appeal's ruling that 4 children, whose mother had taken them to her home country of Spain, had become habitually resident in Spain from that date.


  • In brief:
    In this case, the Supreme Court was asked to consider whether, in Hague Convention proceedings, the court can take account of a child's state of mind in determining his habitual residence; and whether the child should be made a party to the proceedings.

    The appeal related to the Hague Convention 1980 ("the Convention") and to s.1(2) Child Abduction and Custody Act 1985 and was brought within proceedings issued by a mother (Spanish national living in Spain) (“M”) against a father (British national living in England) (“F”) for the summary return of their four children (“T” (a girl aged 13), “L” (a boy aged 11), “A” (a boy aged 9) and “N” (a boy aged 5)) from England to Spain. 

    The Convention stipulates that, subject to narrow exceptions, a child wrongfully removed from, or retained outside, his or her place of habitual residence shall promptly be returned to it. The test for determining whether a child is habitually resident in a place is now whether there is some degree of integration by him or her in a social and family environment there. 

    The principal question in this appeal was whether the courts might, in making a determination of habitual residence in relation to an adolescent child who has resided for a short time in a place under the care of one of his or her parents, have regard to that child's state of mind during the period of residence there. A subsidiary question was whether, in this case, the trial judge erred in exercising his discretion to decline to make the eldest child, T, a party to the proceedings. 

    We have covered this case previously and as it made its way through the lower courts. To recap, the parents met in England and had lived in this country throughout their relationship, which ended early in 2012. On 24 July 2012 M and the four children, who were all born in the UK, moved to Spain where they then lived with their maternal grandmother. It was agreed that the children would spend Christmas with F and on 23 December 2012 they returned to England. They were due to return to Spain on 5 January 2013. Shortly before they were due to fly, the two older boys hid the family's passports and they missed the plane. On 21 January 2013 M made an application under the Convention for the children's return to Spain. F applied for T to be joined as a party so that she might be separately represented, which the High Court refused. 

    The High Court found all four children to be habitually resident in Spain and thus that they had been wrongfully been retained by F. The judge acknowledged that the eldest, T, objected to being returned to Spain but determined that she should nonetheless be returned along with the three younger children. 

    The Court of Appeal dismissed the appeal against the judge's finding that the children's habitual residence was in Spain. However, the Court of Appeal reversed the judge's decision to return T to Spain finding that, so robust and determined were T's objections, they should be given very considerable weight. The Court of Appeal concluded that the appropriate course was to remit to the judge the question 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. The Court of Appeal dismissed the appeals not only of L and A but also of T against the High Court's failure (in T's case, refusal) to make them parties to the proceedings. 

    The Supreme Court unanimously found 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 could be reconsidered in relation to all four children. 

    The Supreme Court unanimously also concluded that T should have been granted party status and that the Court of Appeal should have allowed her appeal against the judge's refusal of it. 

    Lord Wilson gave the lead judgment. Courts, he said, are now required, in analysing the habitual residence of a child, to search for some integration of her in a social and family environment. Where a child goes lawfully to reside with a parent in a state in which that parent is habitually resident it will be highly unusual for that child not to acquire habitual residence there too. However, in highly unusual cases, he said, there must be room for a different conclusion, and the requirement of some degree of integration provided such room. No different conclusion will be reached in the case of a young child. Where, however, the child is older, particularly where the child is or has the maturity of an adolescent, and the residence has been of a short duration, the inquiry into her integration in the new environment may warrant attention to be given to a different dimension. 

    Lady Hale, with whom Lord Sumption agreed, stated that the question of whether a child's state of mind was relevant to whether that child had acquired habitual residence in the place he or she was living could not be restricted only to adolescent children. In her view, the logic making an adolescent's state of mind relevant applied equally to younger children, although the answer to the factual question might be different. 

    The Court noted that what can be relevant to whether an older child shares her parent's habitual residence is not the child's "wishes", "views", "intentions" or "decisions" but her state of mind during the period of her residence with that parent. 

    The Court rejected the suggestion that it should substitute a conclusion that T remained habitually resident in England on 5 January 2013. The inquiry into T's state of mind in the High Court had been in relation to her objections to returning to Spain and had not been directly concerned with her state of mind during her time there. In addition, M had not had the opportunity to give evidence, nor to make submissions, in response to T's statements to Cafcass regarding her state of mind when in Spain. Lady Hale expressed grave doubts about whether sending the case back to the High Court for further enquiries into the children's states of mind would be a fruitful exercise. However, in the interest of justice, she concluded that it should nonetheless be sent back. 

    The majority did not think the state of mind of L or A could alone alter the conclusion about their integration in Spain, but noted another significant factor, namely the presence of their older sister, T, in their daily lives. In relation to the habitual residence of the three younger children and in the light of their close sibling bond, the majority queried whether T's habitual residence in England (if such it was) might be a counterweight to the significance of M’s habitual residence in Spain. Lady Hale agreed with this analysis when applied to the youngest child. 

    With regard to the subsidiary appeal, the Court noted that an older child in particular may be able to contribute relevant evidence, not easily obtainable from either parent, about her state of mind during the period in question. However, it was considered inappropriate to hear oral evidence from T even as a party. Instead, a witness statement from T; cross-examination of M by T's advocate; and the same advocate's closing submissions on behalf of T should suffice to represent her contribution as a party.

Case note, published: 18/02/2014

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See also

  • Appeal against the Court of Appeal's ruling that 4 children, whose mother had taken them to her home country of Spain, had become habitually resident in Spain from that date. Despite the Court of Appeal's conclusion that the older child T should not be the subject of an order for return to Spain, the reversal of the judge’s ascription to them of a habitual residence in Spain on 5 January 2013 was necessary, for that would preclude any order of the Spanish court under article 11(8) of B2R. There was a subsidiary appeal against the refusal to allow T to be a party to proceedings. The Supreme Court allowed both grounds of appeal and reluctantly remitted the matter back to the High Court to decide whether any or all of the four children were habitually resident in Spain on 5 January 2013. If it turns out that any or all of the three boys were, it will also have to be decided whether to return them to Spain when their older sister, T, or any of their brothers, is not to return will place them in an intolerable situation. Judgment, 21/01/2014, free
  • The 4 children and M were Spanish nationals, F was English. M took the children back to Spain. After a few months they came back to the UK with F who did not return them to Spain. An order was made for their return which was resisted especially by the older child. The order in her case was overturned but the case of the other 3 children was remitted to the High Court. Discussion of the joinder of the children as parties. Judgment, 03/10/2013, free
  • Appeal against LCG v RL [2013] EWHC 1383 (Fam) decision. Case note, 27/09/2013, members only

Published: 18/02/2014

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