LC (Children)

Habitual residence in international child-abduction proceedings is a fact-sensitive question, assessed from integration and all objectively provable circumstances. No minimum period is required; a short or trial move may suffice. A child’s reaction may be relevant in a suitable case, but the court left open whether a child living with a parent can acquire or choose a different habitual residence. The judge decides whether views amount to an objection. Convention policy must be balanced against age, maturity, roots, delay and practical realities. Robust objections by a child who had spent virtually all life in the requested state justified refusing return. The separate return of younger siblings required urgent reconsideration where the evidence was insufficient to determine an Article 13(b) defence.

The mother sought the return of four Spanish children to Spain after their father brought them to England for Christmas and retained them. Cobb J found Spain to be their habitual residence. He found that the eldest child, T, objected to return but ordered her return, and that the three boys did not object and must return. He had also refused an application to join T as a party.

The father appealed the return orders. The children challenged their participation and, in T’s case, the return order. The Court of Appeal considered joinder, habitual residence, the boys’ views, the discretionary treatment of T’s objection, and whether the boys could be returned separately under Article 13(b). It dismissed the joinder and habitual-residence challenges, reversed T’s return order and remitted the issue concerning the boys. The appeal arose from [2013] EWHC 1383 (Fam).

Disposition. The appeal was allowed in part. The appeals concerning joinder and habitual residence were dismissed. The order returning T to Spain was reversed. The question whether the older boys could safely be returned separately was remitted urgently to the Family Division.

1. Joinder. Party status for a child is not automatic merely because the child is mature and has strong views. The court may balance respect for the child’s autonomy against the need to shield the child from damaging parental litigation. Where the child’s views are fully reported and an existing party can advance the relevant arguments, refusal to join may be upheld. The failure to join younger children, particularly where no application was made and their ages were relevant, was not an error.
2. Appellate approach and habitual residence. Applying the approach in Re B [2013] UKSC 33, the question was whether the first-instance decisions were wrong. Habitual residence is essentially a question of fact, assessed from all the circumstances and principally from matters susceptible to objective proof. There is no minimum duration. A short or trial move can establish habitual residence where the circumstances show integration and an adopted settled purpose. The children’s habitual residence was Spain. The trial judge was entitled to rely on parental agreement, schooling, accommodation, family connections and evidence of integration.
3. Children’s objections. It was for the judge, assisted by the CAFCASS evidence, to decide whether the boys’ wishes amounted to objections rather than preferences. The appellate court should not substitute its assessment for that of a judge who heard the evidence. Later evidence from the boys’ solicitors required caution.
4. T’s return. In exercising the discretion arising from T’s objection, insufficient weight had been given to the fact that she had spent virtually all her life in England, that her stay in Spain was brief, that time had elapsed, and that her objections were robust and determined. The Hague Convention policy had to be assessed in that context. Returning T was unlikely to repair her relationship with her mother. Her return order was therefore reversed.
5. The boys. The court could not determine on the limited evidence whether returning the boys while T remained in England would expose them to a grave risk of psychological harm or otherwise place them in an intolerable situation under Article 13(b). That issue was remitted for an urgent directions hearing and fresh determination.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 1058, dismissed the challenges to joinder and habitual residence, reversed the order for T’s return, and remitted the question concerning the boys.
• High Court Family Division: Cobb J, in [2013] EWHC 1383 (Fam), found Spain to be the children’s habitual residence, found that T objected but ordered her return, and ordered the boys’ return.