Let’s make habitual residence a bit more complicated

Because heaven knows, it has always been so simple, and nobody has ever had to argue  in Court about where a person lives.

 The Supreme Court have handed down their decision in LC (Children) No 2 2014.

http://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0221_Judgment.pdf

There’s a press release which nicely summarises it all  http://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0221_PressSummary.pdf  

I’ll try to break the facts down very simply.  Not that easy, because if it were, it wouldn’t have reached the Supreme Court.

Four children, oldest 13, youngest 5. They lived in England with both parents. The parents relationship broke down and mum moved to Spain with them in July 2012. The children came to stay with dad in England over Christmas 2012 and then did not go back. Mum made applications under Hague Convention for the return of the children. There are claims, strong ones, that the 13 year old in particular did not want to go back to Spain and viewed that she was not living in Spain but had gone there for a while and wanted to stay in England now.

[The whole issue is complicated because mother is a Spanish citizen, and the father had himself lived in Spain for a time, and there were certainly strong Spanish connections for the family as a whole]

A question that came up was whether the children were habitually resident in Spain (they had moved there with mum and had lived with her there for five months by the time the dispute arose) or in England (where they were physically present, and certainly the oldest child was indicating that she wished to remain), or possibly had no habitual residence.

All sorts of things flow from habitual residence. There are not just rafts of caselaw, but ocean-liners of caselaw about habitual residence.

What the Supreme Court say it had boiled down to prior to this case was that one looks at habitual residence as being whether there is some degree of social integration of the child in a social and family environment in that place.

(That gets rid of the ‘intention’ element which can be problematic, because one can have an intention or desire to live in say, Monaco, without actually being habitually resident there. I’d love to live in Moncao, but unless I actually do something about that desire, I’m not actually resident there)

So, on that test, it would have been fairly straightforward that the children’s habitual residence was Spain – they had moved there, they had integrated there and had spent months there.  

However, the Supreme Court accepted father’s argument that with a child who has understanding and a view about where she wants to live, such as the 13 year old, the Court ought to take that into account when deciding the factual question of habitual residence.  The Supreme Court also found that the lower Courts were wrong not to have joined the 13 year old as a party.

Courts are now required, in analysing the habitual residence of a child, to search for some integration of her in a social and family environment [34]. 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, in highly unusual cases there must be room for a different conclusion, and the requirement of some degree of integration provides such room [37].

 No different conclusion will be reached in the case of a young child. Where, however, the child is older, particularly where the child is or has the maturity of an adolescent, and the residence has been of a short duration, the inquiry into her integration in the new environment may warrant attention to be given to a different dimension [37].

[There was some dispute amongst the Supreme Court Judges as to whether the state of mind of a child is a relevant issue in determining habitual residence for ALL children or only ones that have reached a sort of Gillick-esque competence to weigh things up. Two Judges felt it was relevant to all, but had less weight with younger children, the majority felt it was only applicable to children who had that sort of understanding]

So, when looking at whether a child’s particular situation changes the starting point that their habitual residence is with the parent they usually live with, the Supreme Court say that what is to be looked at is

The Court notes that what can be relevant to whether an older child shares her parent’s habitual residence is not the child’s “wishes”, “views”, “intentions” or “decisions” but her state of mind during the period of her residence with that parent

They were clear that where a child was of sufficient age and understanding and wished to be joined as a party in circumstances like this, the Court ought to allow it.

Having been joined as a party, how are the enquiries into the child’s state of mind to be conducted?

the Court notes that an older child in particular may be able to contribute relevant evidence, not easily obtainable from either parent, about her state of mind during the period in question [49]. However, it is 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 the same advocate’s closing submissions on behalf of T should suffice to represent her contribution as a party [55]

The Supreme Court make it plain that the sort of features of this case, where a child of the right sort of age and understanding leaves one country to go to live in another and then returns for a short time to the first country, whereupon  an issue arises about where she should live in the long-term are very rare, so they are not envisaging quizzing the children in every Hague Convention case about where they see their habitual residence – it is about ensuring that where this becomes a live issue in a case that the child’s position is not ignored.

Of course, arguments about habitual residence don’t merely become confined to England and Spain – you can have them about England or Scotland, Cumbria or Cornwall, Stoke or West Bromwich.  It is not that uncommon for families when they break up to have geographical separation between the parents as well as emotional separation.

So much flows from habitual residence and ordinary residence that we probably still have not heard the last of this. I suspect that even now, there are some Local Authorities bickering about who has responsibility for a child who are wondering whether the child’s state of mind might prove to be the vital key.