International child abduction disputes over habitual residence

19th January 2015 by

In January 2014 the Supreme Court made a landmark ruling on a case involving allegations of international child abduction after divorce.

The judges ruled that a “child’s state of mind” is relevant in disputed habitual residence claims and that they can have a habitual residence which is separate and distinct from the country in which they live.

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In the Matter of LC (Children) [2014]

The case involved the four children of a British man and a Spanish woman.

When the couple’s relationship broke down in 2012, the children were taken to Spain to live with their mother. In December 2012, the children came back to England for a holiday, but did not return to Spain. The father informed the mother that their children (aged 13, 11, nine and five at the time of the hearing) had made it clear they wished to stay in England, but the mother applied to have them returned to Spain under the Hague Convention 1980.

The father refused to send the children back to Spain, arguing that the four months the children had spent there with their mother did not constitute habitual residence.

In the first instance, the High Court ordered the children to be returned to Spain, but the father, and the three eldest children, made an appeal against this ruling. In the Court of Appeal it was decided that the eldest child would be allowed to stay in the UK, but the case should be remitted back to the High Court to make a ruling on whether, under Article 13b of the Hague Convention, it would be deemed intolerable to split up the siblings.

The father and eldest child took their case to the Supreme Court. They argued that the High Court’s decision that the children had lost their habitual residence in England over the period of their short stay in Spain was erroneous.

In the first such ruling of its kind, the Supreme Court judges set aside the High Court’s original finding and ruled unanimously that a child’s “state of mind” is relevant to any determination of where habitual residence should be. Further, it was deemed possible that a child may have a different habitual residence which is separate and distinct from where the parent, with whom they live, is residing.

European courts have for some time taken a child’s expression of how much they feel integrated as pertinent in cases where a habitual residence is disputed.

The Supreme Court ruling is likely to have great significance in many international child abduction cases.

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.”

Contact Healys divorce lawyers in Brighton and London for more information

To speak to a family solicitor about children and cross-border divorce, please call either our London or Brighton offices today.

We can quickly advise you of your options if your children are at risk and represent you in related court proceedings if necessary.

For more information on the service we provide, please contact Catherine Taylor on 01273 669 124 or email catherine.taylor@healys.com for Brighton. For London please contact Jane Sanders on 020 7822 4107 or email jane.sanders@healys.com.