Supreme Court says children can have legal residence separate from their parents

Cohabitation|Family|Family Law|News|Relationships|January 15th 2014

In a ground-breaking judgement, the Supreme Court has ruled that children can have a legal residence different to the parent which whom they live.

In the Matter of LC (Children) concerned an English father and Spanish mother. They lived together in England and had four children – one girl and three boys, now aged 13, 11, nine and five respectively. All four children were born in the UK.

The couple separated and the mother returned to Spain, taking the children with her. She moved in with members of her family and the children began attending schools in the area. Later that year, the children travelled back to England to spend Christmas with their father.

Shortly before they were due to return to Spain, two of the boys hid the family’s passports. The father told the mother that the children did not wish to travel back. She insisted that they should and negotiations stalled.

The father announced that he had applied for protective orders for the children and the mother then launched proceedings for their return under the Hague Convention on the Civil Aspects of International Child Abduction.

At the High Court, Mr Justice Cobb  said the children’s habitual residence had changed from England to Spain when they moved with their mother and he ruled in favour of the father, saying that all four children should return. The judge acknowledged that the daughter in particular had expressed strong objections to returning but said her view of the family’s situation was distorted and she had not thought the consequences of staying in England.

The Court of Appeal dismissed an appeal against the judge’s ruling that the children’s habitual residence had become Spain, but also ruled that the girl’s objections to returning was sufficiently forceful to merit serious consideration in the legal process. The Court of Appeal also dismissed an appeal against the court’s refusal to allow the girl to become a party to the proceedings.

The case then proceeded to the Supreme Court, where the Justices considered the relevance of the girl’s state of mind during her stay in Spain. Was this relevant to determining her habitual residence?

They concluded that it was relevant. Giving the lead judgement, Lord Wilson said:

“I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may – possibly – have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the “wishes” “views” “intentions” and “decisions” of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent’s habitual residence is her state of mind during the period of her residence with that parent.”

The Supreme Court therefore set aside the original judge’s ruling that the girl’s habitual residence had changed to Spain, and sent the case back to the High Court for further consideration. They made the same decision for her three younger brothers so that their status could be reconsidered alongside their sister’s.

Lord Wilson said:

“In relation to their habitual residence, might [the girl]’s habitual residence in England (if such it was) be a counterweight to the obvious significance of the mother’s habitual residence in Spain? It can be inconvenient for a judge at a remitted hearing to have to note that all options have not been left open to him. By a narrow margin, I find myself persuaded that the proper course is to set aside the finding of habitual residence in respect also of the three boys so that the issue can be reconsidered in relation to all four children.”

The Justices also ruled that the girl should have been allowed to become a party to the proceedings, saying an older child could contribute valuable evidence in such cases, evidence not available from either parent.

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