Supreme Court rules that child’s ‘state of mind’ relevant in determining habitual residence

The Supreme Court ruled today that a child can have a habitual residence which is separate and distinct from the country in which he or she resides. The judgment allows a child's ‘state of mind' to be relevant in cases where there is dispute over which country a child should live in.

The case, In the Matter of LC (Children); In the Matter of LC (Children) (No 2) [2014] UKSC 1, concerned the alleged wrongful retention of four children: T aged 13, L aged 10, A aged 8 and N aged 4 ("the Children"). Their father was British and lived in England while the Spanish mother was living in Spain. The parents' relationship ended in early 2012, soon after which the mother took the children from this jurisdiction to Spain to start a new life, without their father's consent. The children came back to England for a holiday in December 2012 and the father did not return the children to Spain, stating that they had expressed a strong wish to remain in England. The mother then applied for the return of the children to Spain, pursuant to the Hague Convention 1980. The father resisted the application on the grounds that the children had not been habitually resident in Spain and objected to returning.

However, the High Court ruled that all four children had become habitually resident in Spain during the time in which they had lived there with their mother and ordered that they were returned. The father and the three eldest children appealed against this decision to the Court of Appeal who held that the eldest child, aged 13, should stay in England and that the case should be remitted back to the High Court with regard to the question of whether it would be intolerable under Article 13b of the Hague convention to separate the other three children from the eldest child.

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, handed down 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. In the first decision of its type, the Court ruled unanimously that a child's ‘state of mind' is relevant to the evaluation of whether he or she has gained or lost habitual residence in a country and also that a child may have a different habitual residence from that of the parent with whom he or she is living.

The judgement brings England in line with European courts, setting out that the ‘degree of integration' expressed by a child will now be a consideration when deciding whether habitual residence has been acquired.     

The case is likely to have great influence regarding the international movement of children. In response to today's judgment, Melanie Carew, Head of Cafcass Legal, said: ‘The determining of habitual residence is a complex legal concept but one that is becoming increasingly more relevant in the work of family courts as families move across borders. Evidencing a child's state of mind may prove difficult, particularly in younger children, but the fact that its importance is being recognised through this judgment is a positive step forward in delivering a system that truly has the child's wants and needs as its focus.'