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Charlotte Sanders: A child’s state of mind can determine their habitual residence – Re LC (No 2)  UKSC 1
Sep 29, 2018, 19:00 PM
Do children get a say as to where they should live? Yes, sometimes, says the Supreme Court in the case of Re LC (No 2)  UKSC 1,  1 FLR (forthcoming).
The Supreme Court has recently decided the untested issue of whether a child can effective
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Do children get a say as to where they should live? Yes, sometimes, says the Supreme Court in the case of Re LC (No 2)  UKSC 1,  1 FLR (forthcoming).
The Supreme Court has recently decided the untested issue of whether a child can effectively determine his or her own habitual residence. The Court held that a child's state of mind, particularly that of an adolescent, should be taken into account in determining habitual residence. The case also establishes that it is possible for a child to have an habitual residence separate from that of the parent with whom they are living.
The father and mother had four children: T now aged 13, L now aged 11, A now aged 9 and N now aged 5. The father is English and the mother is Spanish. The family lived together in England. When the parents' relationship ended in 2012, the mother took the children to Spain to start a new life. It was later found that the father had consented to this move.
The children resided in Spain until 23 December 2012, when they returned to England for what was agreed between the parents to be no more than a holiday. They were due to return to Spain on 5 January 2013. However, the children told their father that they did not want to return to Spain, and indeed L and A hid their passports, and the flight back to Spain was missed. Since then, the children have remained with the father in England.
The mother applied under the Hague Convention 1980 (the ‘Convention') for the summary return of the children to Spain. The father resisted this application, and applied for T to be joined to the proceedings as a party.
Prior to the hearing, a Cafcass officer interviewed T and the two older boys. From these interviews, she found that these children, and particularly T, did not want to go back to Spain. In the course of the interviews, they, again particularly T, made comments about their life in Spain in 2012 which, if taken at face value, indicated that they had not felt settled there.
It is necessary to consider the history of this case, so that the Supreme Court's decision can be seen in context.
First Instance Decision
Four issues were raised for Cobb J to determine:
(1) Were the children habitually resident in Spain on 5 January 2014 making their retention wrongful under Article 3 of the Convention?
Cobb J held that the children were habitually resident in Spain. At this stage the judgment of the Supreme Court in Re A (Jurisdiction: Return of Child)  UKSC 60,  1 FLR 111 had not yet been handed down. As such, Cobb J followed the habitual residence test set out in R v Barnet LBC, Ex Parte Nillish Shah  2 AC 309, and in the CJEU's decision in Mercredi v Chaffe (Case C-497-10)  1 FLR 1293. As the father had agreed that the mother should take the children to reside in Spain indefinitely, Cobb J held that the children had habitual residence there. He also considered that the children had achieved a significant degree of integration into their social and family environment in Spain. This was despite the fact that the Cafcass officer had commented that the children had said they did not want to live there and did not feel settled there. As such, the judge held that the retention was wrong under Art 3 of the Convention.
(2) Did the three older children object to being returned to Spain and had they attained an age and a degree of maturity where it was appropriate to take account of their views, pursuant to Art 13 of the Convention?
Article 12 of the Convention sets out that courts are obliged to return children to their country of habitual residence, unless one of the exceptions in Art 13 applies. Cobb J held that T objected to being returned to Spain and had attained the requisite age and degree of maturity. However, he found that although L and A had also attained an age and a degree of maturity at which it was appropriate to take into account their views, their expressed wishes were only preferences rather than objections.
(3) Was there a grave risk that the return of the children to Spain would place one or more of them in an intolerable situation, again pursuant to Art 13(b) of the Convention?
Cobb J held that the children would not be placed in an intolerable situation if they returned to Spain.
(4) Whether Cobb J should exercise his discretion to decline to order the return of the children to Spain, pursuant to Art 13 of the Convention, if the Court upheld 2 and or 3 above?
Notwithstanding the fact that Cobb J had held that T objected to being returned, he decided not to exercise his discretion to decline to order her return to Spain.
The court also held that T should not be joined as a party to the proceedings, as children should be sheltered from the effects of litigation.
The father appealed, as did T, L and A.
At an interlocutory hearing, a single Lord Justice granted permission to the three children to appeal against Cobb J's failure to make them parties to the proceedings (the Supreme Court later found that on any view the permitted appeal of L and A was highly problematic as no one had suggested to Cobb J that they become parties).
Court of Appeal decision
The Court of Appeal dismissed the appeals of T, L and A to be joined as parties to the proceedings. It was important to allow children of a proper age and maturity to participate appropriately in proceedings which affected them. However, welfare considerations were by no means out of place in the court's consideration of whether they should be joined as parties. It was difficult to criticise the judge for failing to join L and A as parties because of their age and the fact that he had never even been asked to consider joining them. In respect of T, the judge's balancing of the various factors was unassailable. Although T's views were clear, the father could be expected to put forward comprehensive arguments in favour of the result T wished to achieve.
The following questions then fell to be determined:
(1) Was Cobb J's finding that the children were habitually resident in Spain wrong, given their assertions to the contrary?
The Court of Appeal upheld Cobb J's decision on habitual residence. In deciding this, the Court of Appeal approved the dicta of Thorpe LJ in DL v EZ and Reunite  EWCA Civ 865,  1 FLR (forthcoming) in which he had stated that the tests for habitual residence in our domestic law, EU law and under the Hague Convention are all the same.
Habitual residence was essentially a question of fact to be determined by reference to all the circumstances of a particular case. Part of the relevant factual circumstances in a suitable case might be the way in which the children reacted to their move of residence. In the instant case, even a child's perspective was capable of being influential in the decision as to habitual residence, the judge had not ignored this or failed to give it proper weight in his deliberation. He had been entitled to conclude that their habitual residence was in Spain.
(2) Had Cobb J erred by failing to categorise L and A's views as objections?
The judge had gained the sense from oral evidence and other relevant material that L and A's feelings fell short of objections. It was for the judge to determine whether a child's views amounted to an objection, and he had been entitled to categorise the boys' views as preferences.
(3) Had Cobb J been wrong not to give determinative weight to T's views?
Sufficient weight had not been given to the fact that the whole of T's life had been spent in England, with only a short interlude in Spain. Moreover, her objections to returning were so robust and determined that very considerable weight had to be given to them. That was not sufficiently recognised by the High Court. In those circumstances, the judge's decision to return T to Spain was reversed.
(4) If T remained in the UK, what should happen to the younger children?
If the younger children were returned to Spain the siblings would be separated for some months. It was difficult to tell on the basis of the present material whether that would place the boys in an intolerable situation. As such, that question was remitted to the Family Division for determination as quickly as possible.
The father appealed the finding that the children were habitually resident in Spain, and in respect of the court failing to take into account L and A's objections. T also appealed on the issue of whether she should be joined as a party.
Supreme Court decision
The Primary Issue: Habitual Residence
The Supreme Court, before looking at the issue of habitual residence, confirmed the reason why it was so important for the father to have the decision on the children's habitual residence in Spain overturned. The effect of Art 11(8) of Council Regulation (EC) No 2201/2003 (Brussels II Revised) means that unless the children were not habitually resident in Spain on 5 January 2013, the Spanish court could still in due course order the children back and the English court would have to comply. This would be the case even if the English court had ordered that the children should remain in England pursuant to Art 13 of the Convention.
The Supreme Court confirmed the judgment in Re A (above), which decided that the test for determining whether a child is habitually resident in a place is whether there is some degree of integration by the child in a social and family environment in the given jurisdiction. This is a question of pure fact. In doing so, the Supreme Court found that the tests used by the High Court and the Court of Appeal were out of date.
The Supreme Court held that 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, the Supreme Court held that in highly unusual cases there must be room for a different conclusion, and the requirement of some degree of integration (test for habitual residence) provides such room. As such, the court unanimously held that a child's state of mind during a period of residence in a country will sometimes be relevant to whether he or she was habitually resident there, and that the case should be remitted to the High Court to determine that issue afresh of where the children were habitually resident on 5 January 2013. The logical consequence of that finding is that it is possible for children to have a different habitual residence from that of the parent with whom they are living.
The court made clear that words such as ‘wishes', ‘views', ‘intentions' or ‘decisions' are not relevant in determining whether a child has the degree of integration in a social and family environment. Rather, what may be relevant in assessing whether a child has a parent's habitual residence is the child's state of mind during the period of residence with that parent.
However, at this point a difference arose between the five justices. The majority (Lord Wilson, Lord Toulson and Lord Hodge) considered that it is principally the state of mind only of an adolescent child, in this case therefore only of T, which might occasionally be relevant. They were doubtful whether the state of mind of, in this case, the two older boys could, alone, alter the judge's conclusion about their habitual residence. Their conclusion that the judge should reconsider the habitual residence of the three boys, as well as of T, is primarily founded on a different hypothesis, namely that, in light of the apparent closeness of all four children, T's continued habitual residence in England (if this turns out to be the case), might impact on the habitual residence of the boys. T's possible habitual residence in England could be ‘a counterweight to the obvious significance of the mother's habitual residence in Spain'.
The minority (Lady Hale and Lord Sumption) would have held that the state of mind of younger children, say school age children, can, in principle be as relevant as that of adolescent children to their habitual residence. So they would have been prepared to countenance a possible attachment of greater weight to the state of mind of the two older boys while resident in Spain, even though they were then aged only 10 and 8.
The court will still have to look at all the facts relevant to integration to determine whether at the relevant time the child was habitually resident in the new country. The intentions of parents, even those with sole parental responsibility, are only a part of the evaluation, which is a matter of fact.
The subsidiary issue: joining the children as parties to these proceedings
Under FPR 2010, r 16.2, a court can make a child party to proceedings if it considers it is in the child's best interests to do so.
The Supreme Court also held that T should have been granted party status, as she could provide relevant evidence as to her state of mind that was not easily obtainable from either parent. However, it was considered inappropriate to hear oral evidence from T even as a party. Instead a witness statement from T, cross-examination of the mother by T's advocate and closing submissions by T's advocate would suffice.
This case will undoubtedly have a big impact on cases concerning the movement of children between countries. It is the first time that it has been clearly articulated that a child's state of mind will be an important factor in deciding where they are habitually resident.
In reality, the decision means that a parent moving jurisdictions with children will have to sever links with the child's original country of habitual residence in a short space of time, in order to terminate habitual residence there. With a very young child who has yet to make links in school or in the community this may be possible, however it will be much more difficult with children of school age, who have begun to have aspects of their own lives.
This decision seems logical, in that if a child has the appropriate degree of maturity, they should be able to assist the court with its finding of whether or not they are integrated in a new country. As such, this decision supports the autonomy of adolescent children.
However, on a practical level, it is likely that children will now be increasingly dragged into litigation between their parents. It is well established that children do not benefit from playing a part in acrimonious litigation, and it can often affect relationships with one or both parents. Now it is likely that parents will place even greater force on their adolescent children to ‘back' their side of the argument. This is even more the case given the court's decision that it may be helpful for children to be given party status.
We will have to watch this space to see how this case is implemented by the lower courts, however it is in keeping with the recent case-law showing a shift towards recognising the autonomy of children, rather than an emphasis on parental rights.
Charlotte Sanders is an assistant solicitor at Vardags.
She joined Vardags in September 2013, having completed her training contract at Manches LLP where she gained experience in family, employment, litigation and private property, before choosing to qualify and specialise in family law.
Charlotte takes a keen interest in humanitarian issues: after graduating in 2009 she spent three months working for a law firm in Atlanta, USA, aiming to secure the release of three detainees held at Guantanamo Bay.