Goodman Ray acted on behalf of the successful father in High Court proceedings remitted from the Court of Appeal and the Supreme Court in relation to an application for the summary return of four children to Spain under the Hague Convention.
The decision arose out of the alleged abduction of four children, now aged 13, 10, 8 and 5 from Spain by their father. The children’s father is British and their mother Spanish. All four 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 four children to live in Spain. After spending approximately four 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 four 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 three 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 four 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.
The Supreme Court allowed the father’s appeal and set aside the High Court’s earlier finding that the children had been habitually resident in Spain during the short period they had lived there with their mother. In the first judgment of it’s kind, the Supreme 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.
The case was 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. In a landmark judgment the High Court has now determined that the children were not habitually resident in Spain during the period that they resided there, in spite of it being clear that the mother (with whom they resided) had gained habitual residence in Spain. The Judge found that the children’s deep roots in England and their strong feelings that England remained their home in spite of their mother’s actions in moving them to Spain meant that they had not become sufficiently integrated in Spain to gain habitual residence there. The mother’s application for summary return of the children to Spain was therefore dismissed.
Ann Thompson, the solicitor for the father, had this to say:
“This decision is the culmination to a growing body of law which make it clear that children’s voices cannot be ignored in determining their habitual residence and the Courts are now taking a childcentric approach in determining this issue. In most cases this will be a simple task however in cases such as this, when one parent, acts to uproot a child from their home and everything that is familiar to them without preparing or consulting them about the move, the question of where they truly ‘live’ will arise. This decision has made it clear that, a parent’s intentions are only one aspect of a much broader picture and that children’s feelings and wishes cannot simply be disregarded. This family, and particularly these children, have been through hell in the last 18 months, never knowing if they were going to be wrenched away from the country they regard as their home and where they clearly stated they wish to stay. It is reassuring that their voices have now finally be heard and they can finally begin the process of returning to their normal lives.”
The text of the Judgment can be found here: http://www.bailii.org/ew/cases/EWFC/HCJ/2014/8.html
Notes:
The children and parents named in this case cannot be identified in any reports of the proceedings.
CONTACT:
Ann Thompson, Goodman Ray Solicitors (annthompson@goodmanray.com)
Or Vikki Orton, Goodman Ray Solicitors (vikkiorton@goodmanray.com)
020 7608 1227
