LCG v RL

Habitual residence under the Hague Convention is determined from all the circumstances, including the child’s integration into a social and family environment and the parents’ intentions. A move may establish habitual residence even if initially intended to be temporary or of uncertain duration. Clear parental agreement may facilitate a change of habitual residence, while the views of a parent without custody rights are relevant only as part of the factual assessment.

The child-objections exception requires an actual objection to return and sufficient age and maturity. If engaged, the court retains a broad discretion. The child’s views are important but are not automatically determinative. The Article 13(b) intolerability threshold remains high.

The mother applied under the Child Abduction and Custody Act 1985, the 1980 Hague Convention and Article 11 of Council Regulation (EC) 2201/2003 for the return of four children to Spain. The father opposed the application, contending that the children remained habitually resident in England and Wales and relying on their objections and the Article 13(b) exception.

The parents had separated, and the mother took the children to Spain in July 2012. They settled there, attended school and acquired social and family connections. The father initially accepted their indefinite absence and intended that they would return to Spain after spending Christmas with him. He then retained them in England in January 2013.

The central issues were habitual residence, consent or acquiescence, the children’s objections, and intolerability.

1. Habitual residence. The children had been habitually resident in England until July 2012 but lost that habitual residence and acquired habitual residence in Spain by 5 January 2013. The court applied the integration approach in Mercredi v Chaffe [2011] 1 FLR 1293 and the English test of residence adopted voluntarily for settled purposes as part of the regular order of life in R v Barnet London Borough Council, ex parte Nilish Shah [1983] 2 AC 309. Duration was only an indicator; there was no minimum period.
2. Parental status and agreement. The mother could determine the habitual residence of T and L because the father lacked parental responsibility for them. The father’s views remained relevant to the factual inquiry. For A and N, whose father had parental responsibility, his agreement was required. That agreement was clear, unconditional and bilateral, and facilitated the change of habitual residence.
3. Acquiescence. Even if habitual residence had not changed, the father’s conduct amounted at least to acquiescence for Article 10(a) purposes. His conduct was inconsistent with seeking summary return and included accepting the children’s indefinite stay, supporting them financially and intending to return them to Spain after Christmas.
4. Wrongful retention and exceptions. The retention breached the mother’s custody rights under Spanish law. Article 12 therefore required return unless an Article 13 exception applied. T objected to return and was sufficiently mature for her views to be considered. L and A were sufficiently mature, but their views were preferences and did not amount to objections. The distinction between objection to the habitual-residence State and preference to remain with the abducting parent was material.
5. Discretion. Applying Re M (Abduction: Zimbabwe) [2007] UKHL 55, the discretion was at large. The court considered the strength and authenticity of T’s objections, parental influence, her understanding of the family history, the likely modification of her views on return, the Convention policy of prompt return, the parents’ shared intention that the children return to Spain, and the importance of keeping the siblings together. T’s objections did not warrant refusing return.
6. Article 13(b). There was insufficient evidence that return would expose the children to an intolerable situation through neglect. Although sibling separation could in an appropriate case engage Article 13(b), the issue did not require determination because all four children were ordered to return together.
7. Order. The four children were ordered to return to the Kingdom of Spain. Both parents were expected to support the return and improve their communication and relationships with the children.