In a landmark judgment formally announced today, the Supreme Court has ruled that a child can have a habitual residence separate and distinct from that of the parent with whom they are living.
The decision which is likely to have an impact on cases concerning the international movement of children arose out of the alleged abduction of 4 children, aged 13, 10, 8 and 4 from Spain by their father. The children’s father is British and their mother Spanish. All 4 children were born in England and had lived here for their whole lives until the summer of 2012 when their parent’s relationship broke down and their mother took all 4 children to live in Spain. After spending approximately 4 months in Spain with their mother, the children returned to England to visit their father for the Christmas holidays. The father did not return the children to Spain stating that they had expressed a strong wish to remain living in England.
The mother applied to the High Court for the return of the children to Spain under the Hague Convention 1980. The father resisted the application on the grounds that the children had not been habitually resident in Spain and that they objected to returning; however the High Court ruled that all 4 children had become habitually resident in Spain during the months that they had lived there with their mother and ordered that the children return to Spain. The father and the three eldest children separately appealed against this decision to the Court of Appeal who held that the eldest child, aged 13, should remain in England and that the case should be remitted back to the High Court in order to consider whether the younger 3 children should return to Spain, which would have the effect of separating them from their elder sibling.
In making their decision the Court of Appeal did not feel it was necessary to consider whether the High Court had been correct in deciding that all 4 children had lost their habitual residence in England and had gained habitual residence in Spain during the short period that they had lived there. As the High Court had decided that the children had been habitually resident in Spain during this period, it was open to the mother to use EU legislation to seek the return of the eldest child to Spain notwithstanding the decision of the Court of Appeal. The father and the eldest child appealed to the Supreme Court on the grounds that the High Court had been wrong to find that the children had lost their habitual residence in England during the period they were residing in Spain with their mother.
In their judgment formally announced today, the Supreme Court set aside the High Court’s finding that the children had been habitually resident in Spain during the short period they had lived there with their mother. In the first decision of its kind the Court ruled that a child’s ‘state of mind’ is a relevant factor in determining whether he or she has gained or lost habitual residence in a place and that, by extension, a child may have a different habitual residence to that of the parent with whom they are living. This decision built on the Court’s earlier judgment in the case of A v A (Children: Habitual Residence)  UKSC 60,  3 WLR 761 where the Court held that the test for whether a child was habitually resident in a place is whether there was some degree of integration by the child in a social and family environment and rejected the earlier principle that a child will inevitably share the habitual residence of the parent with whom he or she is living. The Court stated that the question of a child’s ‘state of mind’ will be of importance in the case of an adolescent child however, in her judgment (agreed by Lord Sumption), Lady Hale stated that the question cannot be confined to adolescent children alone.
The case has now been remitted to the High Court to further consider whether any or all of the children were habitually resident in Spain during the period they resided there with their mother.
Ann Thompson, the solicitor with conduct had the following to say:
“The significance of this judgment, both to the family involved, and to the wider arena of international family law cannot be underestimated. This is the first time that the Supreme Court has stated clearly that a child’s views are an important factor in determining where they are habitually resident, even to the extent that the child can have a different habitual residence to their parent with whom they live. These cases often involve one of the most serious decisions for a child’s life – the country in which they should live and call home. Especially in the case of older children their views cannot be ignored. This judgment is a welcome development to the growing body of law which recognises that children, particularly adolescents, can be autonomous individuals in their own right whose views and feelings cannot be side-lined in an attempt to resolve a conflict between their parents”
The children and parents named in this case cannot be identified in any reports of the proceedings.
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This case was heard in the family court and therefore the parents and child involved in this case cannot be identified in any reports of the proceedings.