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Habitual Residence and Joinder in Child Abduction Cases: The Supreme Court's judgment in LC (Children)

Katy Chokowry, barrister of 1 King's Bench Walk, considers the Supreme Court's judgment in LC (Children).

Katy Chokowry, barrister, 1 King's Bench Walk

Katy Chokowry, barrister, 1 King's Bench Walk

In the Matter of LC (Children) [2014] UKSC 1 is the last instalment in a trilogy of judgments on the issue of habitual residence to come from the Supreme Court. The case concerned an application by a mother for the summary return of four children to Spain. At the time of the appeal, the eldest child, T, was aged 13 and the three boys, L, A and N were aged between 11 and 9. Until July 2012, the family had resided in England and taken frequent holidays in Spain which is the mother's homeland. Upon the parental relationship breaking down, the mother took the children to live in Spain. They resided there until December 2012, when they travelled to England to spend the holidays with their father. They were due to return to Spain on 5 January 2013, but they failed to return and they have remained in England ever since.

In order to put the decision of the Supreme Court in context, it is necessary to consider briefly the history of this case from first instance through to the Court of Appeal.

The High Court
In resisting the mother's application at first instance before Cobb J, the father contended that the children had not become habitually resident in Spain during their stay there from July 2012 to December 2012. The father also relied on several defences pursuant to the Hague Convention 1980. In addition, he made an application on behalf of T (the oldest child) for the latter to be joined as a party to the proceedings and to be represented by a children's guardian. At an interlocutory hearing Cobb J declined to make T a party to the proceedings.

 At the final hearing, he found that the children were habitually resident in Spain. This case having been decided before the decision of the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60, Cobb J applied the tests propounded in R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309, and in the CJEU's decision in Mercredi v Chaffe (Case C-497/10 PPU).  He suggested that these decisions were broadly consistent and overlapping.

In respect of the father's defences, the learned Judge rejected the father's contention that there was a grave risk that returning the children to Spain would place one or more of them in an intolerable position. He found that only T had objected to returning to Spain.  Despite that finding, Cobb J decided not to exercise his ensuing discretion to decline to order her return to Spain. Thus he ordered the return of all four children to Spain.

Behind the scenes
Following the conclusion of proceedings before Cobb J, the children instructed solicitors. T consulted one firm of solicitors and the younger two children another. All were assessed as being competent to give instructions. The representatives for the children applied to the Court of Appeal for the children to be joined as parties to the appeal. At separate hearings before Ryder LJ, in the absence of the mother and her representatives, the children were joined as parties to the appeal. The Court of Appeal later commented that Ryder LJ did not seem to have been in possession of the full facts when the decisions were made.  The children, thus, became active participants in the proceedings by the time this case reached the Court of Appeal.

The Court of Appeal
In his appeal the father argued that Cobb J was wrong to find that the children were habitually resident in Spain in December 2012 and that the younger children had not objected to a return to Spain pursuant to Article 13 of the Hague Convention. In addition, in relation to T, it was contended that the judge had erred in declining to exercise his discretion not to order her return to Spain.

A further strand was added to the issue of habitual residence in the Court of Appeal, as in respect to T in particular, it was argued that it is possible for a child to have a habitual residence independently of the parent with whom he or she is living.

The Court of Appeal upheld Cobb J's determination in respect of the children's habitual residence and, in doing so, cited with approval the dicta of Thorpe LJ in DL v EL and Reunite [2013] EWCA Civ 865 in which he stated that there was no distinction between the test for habitual residence according to our domestic law, the test expounded by the CJEU and the autonomous law of the Hague Convention. In relation to the argument advanced in respect of T's habitual residence, the Court of Appeal took the view that it was not necessary for the appeal to be determined to decide whether or not a child living with a parent can have a separate habitual residence from that parent. However, in briefly considering that question as a hypothesis, Black LJ found that Cobb J had sufficiently dealt with the children's perceptions in arriving at his finding on their habitual residence. 

The Court of Appeal also dismissed the children's appeal against Cobb J's refusal to make T a party to the proceedings and the failure to join the younger children (on whose behalf no application had been made to Cobb J).

Further, the Court of Appeal overturned the decision to order T's return and remitted the matter for re-hearing on the issue that arose as a result of its decision, namely, whether there was a grave risk that the return of the younger children to Spain would put them in an intolerable situation if the younger children were returned without T, as they would then be separated from her.

The father was described by Black LJ as having been largely successful in his appeal. Despite his apparent success, the father faced an insurmountable difficulty as by operation of Council Regulation (EC) No.2201/2003 (Brussels II Revised), the Spanish Court, on a welfare basis, was able to order the return of the children notwithstanding the decision of the English Court.  Pursuant to Article 11(8) any such order is enforceable in England and cannot be challenged. The father could only have overcome this difficulty if the court had found that the children were not habitually resident in Spain at the relevant time.

The Supreme Court's decision
For the above reason, despite their said success in the Court of Appeal, the father and T sought to appeal to the Supreme Court. The Supreme Court only granted the father permission to appeal against the decision that the children were habitually resident in Spain on the relevant date. T was granted permission to appeal on two issues: the primary issue in respect of the finding relating to her own habitual residence, and on the subsidiary issue in relation to the refusal to join her as a party to the proceedings at first instance. None of the father's defences therefore made their way to the Supreme Court.

The primary issue: habitual residence
Following the decision in A v A (above), there was no debate in the Supreme Court that Cobb J and the Court of Appeal had applied tests when determining the habitual residence of the children, which are now outdated.

 In A v A (above), the Supreme Court held that the test contained in the Nilish Shah case (above) should be abandoned. It had also held that the test for the determination of habitual residence under the Convention, Brussels II Revised and domestic legislation should be the same. Therefore, the test for determining whether a child was habitually resident in a given place now is: whether there was some degree of integration by the said child in a social and family environment in the given jurisdiction. Thus the determination of a child's habitual residence is now a question of pure fact.

The adoption of the European test strips away the legal constructs which had been developed in previous English authorities. One such rule was that a child in the lawful custody of one parent necessarily shared the habitual residence of that parent. This statement of policy was said in A v A to be no more than a helpful generalisation of fact. It is also said that the current test is focused on the circumstances of the child and moves away from a test that was more centred on parental rights. 

Focusing on T's case, therefore, the specific question before the Supreme Court was whether in assessing the degree of integration in relation to an adolescent child who has resided in a state for a short time under the care of one parent, the court may have regard to that child's state of mind during her period of residence in relation to the nature and the quality of that residence. It should be said at the outset that contrary to the submissions advanced there, the Supreme Court identified the state of mind of the child in question as the relevant dimension to consider and not the child's wishes and feelings, or intention etc.

In answering that principal question raised by this appeal, the Supreme Court started with consideration of the position regarding younger children and again referred to A v A (above), in which the propositions of the CJEU in Mercredi v Chaffe (above) were adopted. In both A v A and Mercredi, the courts were concerned with young infants. Thus it was said that the social and family environment of an infant or a young child will be shared with those on whom she is dependent, whether parents or others. In giving the lead judgment, Lord Wilson confirmed the majority of the Court's view that when a child moves lawfully to reside with a parent in a state where that parent is habitually resident, it would be highly unusual for that child not to acquire habitual residence there. 

However, Lord Wilson, with whom Lord Toulson and Lord Hodge agreed, held that "in highly unusual cases there must be room for a different conclusion; and the requirement of some integration creates room for it perfectly".  In these types of cases, the Supreme Court unanimously held that the state of mind of a child during a period of residence in a new country will sometimes be relevant to the issue of whether he is habitually resident in that country.

The Court parted company at this stage. Lord Wilson, delivering a summary of the judgment of the Court, has described the difference between the views of the justices of the Court as a "difference of emphasis". The majority of the Court were of the view that it is the state of mind of, principally, adolescents during their period of residence in their new environment which might occasionally be relevant to the issue of whether they share their habitual residence with the parent with whom they live. Thus the Court held that in the case of such children, the enquiry into their integration into their new environment must encompass more than surface features of their life there.

This case was one such unusual case as the children had lived in England for the entirety of their lives until July 2012. Thereafter they had spent approximately 5 months in Spain before returning to England. The children had expressed views to the Cafcass Officer who reported in the proceedings before Cobb J, which, if taken at face value, indicated that they had not felt settled in Spain.  Regardless of the unusual features, however, the majority of the Court held that no different conclusion would be reached in the case of a young child.

Lady Hale, with whom Lord Sumption agreed, dissented with the majority in this regard, stating that the logic which makes the state of mind of adolescents relevant to whether or not they have acquired a habitual residence applies equally to younger children.

On a closer inspection, it appears that the Supreme Court is also in agreement in so far as infants and young children are concerned as it is unanimously accepted that such a child's family environment is determined by reference with whom he lives. Lady Hale draws a distinction once a child leaves the family environment and goes to school, thus widening his social world; or where the child of separated parents is aware that he has two homes. Thus, it is the state of mind of a child of school age that Lady Hale would hold is relevant to the issue of her habitual residence.

If ever there was any concern that this decision might open the floodgates for the abducting parent to claim that the child was not habitually resident in the requesting state at the relevant time, this is laid to rest by the concluding paragraph of Lord Wilson's judgment and Lady Hale's reminder of the policy of the Convention. Thus, in concluding the majority judgment, Lord Wilson stressed heavily the unusual features of this case and emphasised that this appeal related to an older child resident with a parent only for a short time in the suggested state of habitual residence: two unusual features which his Lordship stated had precipitated the various conclusions of the Court.  The Court clearly envisages that only in a minority of cases would a child's habitual residence be in issue, and in addition in only a small proportion of such cases would the issue of the child's state of mind arise.

It is worth nothing that Lady Hale states that children interviewed in Hague cases should not be routinely asked questions about their habitual residence.

Declining the invitation of the father and of T to substitute its own conclusion that T had remained habitually resident in England at the relevant time, the Supreme Court unanimously (although for different reasons) decided to remit the issue of all the children's habitual residence to the High Court for fresh consideration. This decision was made despite the majority expressing the view that they were doubtful whether the state of mind of the elder two boys (the youngest being considered too young in any event) could alter the judge's decision in respect of their habitual residence. Their conclusion that the habitual residence of all the children should be reconsidered together is founded upon the justices' view of the apparent closeness of all four children. Thus it is felt that the decision in respect of T, in the event that she is found to have been habitually resident in England at the relevant time, might impact on the habitual residence of her brothers.

Joinder of the children to the proceedings
The subsidiary question considered by the Supreme Court was whether Cobb J had erred in exercising his discretion to decline to make T a party to the proceedings.

The Court may make a child party to proceedings if it considers it is in the child's best interests to do so: rule 16.2, FPR 2010.

In declining to make T a party to the proceedings, Cobb J stated that he had to balance the need to "respect the autonomy of a mature child, who clearly expresses her wishes forcefully and intelligently to a CAFCASS officer, against the desirability of shielding such a child from the court process of which she is a subject". The Court of Appeal considered that Cobb J had given cogent reasons for refusing to make T a party to the proceedings and his balancing of the various factors in a comprehensive judgment dedicated to that question was unassailable.

The Supreme Court disagreed with the Court of Appeal and concluded that T should have been granted party status by Cobb J, and her appeal should have been allowed. Whilst stressing that it should not now be understood that children whose habitual residence in the requesting state is in issue should be routinely joined as parties, Lord Wilson stated that an older child may be able to contribute relevant evidence not easily given by the parents into an inquiry into the degree of integration of the child both when the court is considering the issue of habitual residence, and settlement pursuant to Article 12 of the Convention.

The Court held that Cobb J's conclusion about T's habitual residence had to be set aside as he had failed to address T's evidence about her state of mind when in Spain in 2012. That evidence could only be given by T ,such that she has a standpoint incapable of being represented by either of the adult parties (one of the factors listed in PD7.2, FPR 2010). 

The decision of the Court in this regard simply reiterates the approach already largely adopted by the High Court in any event, and reaffirms the criteria laid down in the Family Procedure Rules 2010 when considering the issue of joinder of a child to proceedings.

In considering the extent of the role that T should have been allowed to play if she had been granted party status, Lord Wilson considered that the reasonable course would have been to confine T's participation to the adduction of a witness statement by T, a report from her guardian focussed upon her account of her residence in Spain, including her state of mind at that time, and for her advocate to then represent her in the usual manner. Lord Wilson considered that it would have been inappropriate for Cobb J to hear oral evidence from T in court. If such oral evidence were required it is suggested that T could have been asked questions otherwise than in court and recorded on video-tape.

In summary
The important point of principle that emanates from this judgment is that the state of mind of a mature child, and in particular an adolescent, may on occasion be relevant to the inquiry into his habitual residence. The likelihood that such a child has a different habitual residence from the parent with whom he lives will only arise in highly unusual cases.

Katy Chokowry was junior counsel for Reunite who were interveners in the Supreme Court proceedings.