Residency tested

On 15 January the Supreme Court handed down its judgment in LC (Children) (No 2), a child abduction case raising issues of habitual residence and the consideration of children’s views. The case involved a Spanish mother and an English father with four children: T aged 13; L aged 11; A aged 9; and N aged 5. The children were all born in England, where the parties lived throughout their relationship until its breakdown in July 2012, when the mother relocated to Spain with the children. The children returned to England to spend Christmas 2012 with their father, but when they were due to travel back to Spain in January 2013, T refused to go, and L and A hid their passports.

The mother made an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the children’s return to Spain. In defending the application, the father argued that: a) the children were not habitually resident in Spain (and so their retention in England in January 2013 was not wrongful); and/or b) given T’s objections to returning, the court should exercise its discretion not to order her return. The father also sought permission for T to be joined as a party.

The court at first instance concluded that the children had been wrongfully retained in England on the basis that they had, by this time, become habitually resident in Spain. Although the judge acknowledged T’s objections, he ordered her to return with her siblings. The father appealed.

The Court of Appeal agreed that all four children were habitually resident in Spain but reversed the decision to return T. The matter was remitted to the High Court for consideration as to whether, if T was not going to return to Spain, the three younger children would be placed in an intolerable situation by being, for the first time in their lives, separated from her.

The appeal before the Supreme Court related to T’s habitual residence and whether she should be joined as a party to the proceedings.  T and the father contended that she was not habitually resident in Spain at the time the children were retained in England.

The Supreme Court held that, when considering the issue of habitual residence (determined by whether there has been some degree of integration by the child in the social and family environment in the country), regard should be given to T’s state of mind at the relevant time – that is to say, the period she lived in Spain.  

The matter was remitted to the High Court for consideration of T’s integration in Spain, in line with the above definition of ‘habitual residence’. The Supreme Court was not prepared to make a finding that T was habitually resident in England because the evidence before the court related to T’s current objections to returning, rather than her state of mind when she lived in Spain. The court also set aside the finding that the younger three children were habitually resident in Spain. The issue was to be reconsidered in respect of all four children.

In relation to the second part of the appeal, the Supreme Court granted T permission to be made a party to the proceedings.

Habitual residence

What is particularly interesting about this case is the father’s (and T’s) determination to secure a finding that the children were habitually resident in England. As members of the EU, both England and Spain are bound by the provisions of Council Regulation (EC) No 2201/2003 (known as Brussels II revised) which takes precedence over the Hague Convention. Under Brussels II, even if the English court exercised its discretion not to return T (and the three younger children) to Spain, the Spanish courts could still make orders for their return. This is because article 10 of Brussels II provides for the continuing jurisdiction of the state in which a child is habitually resident (in this case Spain, unless the High Court reverses its original decision), and article 11 provides that any order made in this regard by the court is enforceable in other EU member states.

Children’s views

The LC judgment is an important step in bringing the views of children to the fore. At paragraph 87 of her judgment, Lady Hale states: ‘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.’

The decision shows how the courts are adapting to social change. With increasing globalisation, children have exposure to different countries and cultures. It is not surprising, therefore, that careful consideration needs to be given to children’s integration in those countries if the court is ever asked to determine where they consider to be ‘home’.

Habitual residence is an important concept but not one that is easy to grapple with. One can lose one’s habitual residence within days of leaving a country, but it might take months for a new one to be established. Timing might be crucial if you need to issue urgent children or financial proceedings in a particular country.

For those representing parents who wish to relocate with their children, LC shows the importance of preparing children properly for the move and making an effort to settle them afterwards. T, in particular, denied ever being told that the move to Spain was permanent, which no doubt affected the evidence she gave about her integration into the Spanish environment.  

Much time is spent by parents planning a relocation (for instance, investigating appropriate accommodation and schools), but it is clear from this case that the mother could have done more to ensure the children’s integration. Her failure to do this might be critical to her application.

For those representing the ‘left behind’ parent, it is important to give early advice about the impact of agreeing to the relocation and the methods of protection which are available if there are concerns about the children settling in the new country. If the left behind parent becomes concerned, as was the case in LC, evidence should be obtained as to the child’s state of mind, with particular emphasis on how well they have or have not integrated. Depending on the child’s age, this is likely to be crucial to the question of habitual residence, and therefore jurisdiction.

The decision in LC is, however, unlikely to result in a surge of cases challenging habitual residence based on a child’s evidence about integration. The Supreme Court was clear that the decision was facts-specific, in a case where the children had lived their whole lives in England before spending a few difficult months in Spain. The court’s view that T in particular was confident and intelligent and ‘had a maturity beyond her years’ was also significant in how her objections to a return were taken on board.

Connie Atkinson is a family lawyer at Kingsley Napley