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Children can have habitual residence separate from their parents, High Court rules

Mother’s Hague Convention application dismissed in case remitted by Supreme Court

In High Court proceedings remitted from the Court of Appeal and the Supreme Court, Roderic Wood J has dismissed a mother's application  under the Hague Convention 1980 for the summary return of her four children to Spain.

The decision in LC v RRL and Others [2014] EWHC 8 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.

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 its 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 consider further whether any or all of the children were habitually resident in Spain during the period they resided there with their mother. 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, of Goodman Ray, who acted 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."

Henry Setright QC of 4 Paper Buildings and Edward Devereux of Harcourt Chambers (instructed by Dawson Cornwell) appeared on behalf of the mother. Frank Feehan QC of 42 Bedford Row and Christopher Hames of 4 Paper Buildings (instructed by Goodman Ray) appeared on behalf of the father. David Williams QC and Jacqueline Renton both of 4 Paper Buildings (instructed by The International Family Law Group LLP) appeared on behalf of the daughter, T. Seamus Kearney of Lamb Building appeared on behalf of the Guardian.

The judgment can be found here.

The original High Court judgment is here; the Court of Appeal judgment is here; and the Supreme Court judgment here.

12/6/14