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(Supreme Court, Lady Hale, Deputy President, Lord Wilson, Lord Sumption, Lord Toulson, Lord Hodge, 15 January 2014)
The Spanish mother sought a return of her four children to Spain where they had been living since the mother's separation from the English father. The children spent Christmas with the father in England, where the family had previously lived together, and thereafter refused to return. The mother applied for a return order pursuant to the Hague Convention and the father applied for the oldest child, aged 13, to be joined to the proceedings. That application was refused in the High Court and a return order was made in relation to all four children. The judge found that despite the oldest child objecting to a return she should, nevertheless, be returned too.
The Court of Appeal dismissed the appeal against the finding that the children's place of habitual residence was Spain but the decision to return the oldest child was reversed. The judges found that her objections were robust and determined and that they should, therefore, be given considerable weight. The Court of Appeal remitted the case to the High Court for determination of whether it would be intolerable to return the three younger children without their older sibling. The appeal against the failure to join the oldest child to the proceedings was dismissed.
In the Supreme Court the main issue to be determined was whether in deciding whether a child had become habitually resident in a particular country in relation to an adolescent child who had resided in a place under the care of one of the parents for a short period of time, it was appropriate to take into consideration the child's own state of mind during the period of residence in relation to the nature and quality of that residence.
In the light of the child's age and of the Cafcass assessment of her maturity, the child's assertions to the Cafcass officer about her state of mind during her residence in Spain in had at least some relevance to a determination of whether her residence there was habitual. They were relevant to whether she was integrated to some degree in a social and family environment there.
The appeal was allowed, and the finding that the child was habitually resident in Spain was set aside. The issue was remitted to the High Court for fresh consideration. The court was not in a position to go so far as to substitute a finding that she remained habitually resident in England. By a narrow margin it was also appropriate to set aside the findings that the three younger children were also habitually resident in Spain in order for the judge to have all options left open to him.
On the matter of whether the oldest child should have been joined as a party to the proceedings the appeal would also be allowed. The grant of party status would have given the court a wide discretion as to the extent of the child's involvement.
Lady Hale and Lord Sumption agreed with the majority but went further and found that the principle that the child's own state of mind should be considered should not be restricted to adolescent children but in these circumstances could also apply to the middle two children, who were aged 10 and 8, at the time they spoke to the Cafcass officer.