In the matter of LC (Children)

A child’s habitual residence is a factual, child-centred question: whether the child has some degree of integration in a social and family environment. Parental rights, consent and habitual residence inform, but do not determine, that question.

For an adolescent, particularly after a short residence with one parent, the inquiry must extend beyond the surface features of life there. The child’s state of mind during the residence may be relevant to integration. It is evidence within the overall inquiry, not a separate test based on wishes or intention.

A child may be joined to Convention proceedings only where joinder is in the child’s best interests. A distinctive standpoint which no adult party can represent may satisfy that threshold, but joinder remains exceptional.

The mother sought the summary return of four children from England to Spain under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The children had lived in England throughout their lives before residing with the mother in Spain for five months. They returned to England for a holiday with the father and did not go back.

Cobb J held in [2013] EWHC 1383 (Fam) that all four children had become habitually resident in Spain and ordered their return. He found that the eldest child, T, objected to returning but declined to exercise his discretion against return. He also refused to make T a party.

The Court of Appeal, [2013] EWCA Civ 1058, upheld the finding of habitual residence and the refusal of party status. It nevertheless held that T should not be returned and remitted the question whether separating the younger children from her would create an intolerable situation.

The principal issue was whether an older child’s state of mind during residence in another country may inform the assessment of integration and habitual residence. A subsidiary issue concerned T’s party status.

1. Appeals allowed. The findings that all four children were habitually resident in Spain were set aside. The issue was remitted to the High Court for fresh determination. T should also have been made a party to the proceedings.

2. Lord Wilson, with whom Lord Toulson and Lord Hodge agreed, held that habitual residence requires some degree of integration by the child in a social and family environment. The inquiry is factual and child-centred. A parent’s habitual residence, parental responsibility and consent to relocation are important circumstances, but they do not determine the child’s habitual residence.

3. For an adolescent, or a child with adolescent maturity, particularly following a short residence with one parent, integration cannot always be assessed solely from the surface features of life in the new country. The child’s state of mind during that residence may be relevant. The proper concept is state of mind rather than wishes, views, intentions or decisions. It remains only one element of the overall factual assessment.

4. Cobb J had not considered T’s evidence about her state of mind while living in Spain. That evidence might bear on whether she had achieved the necessary integration. The Supreme Court could not substitute its own conclusion because the evidence required evaluation against substantial contrary evidence, the mother had not had a fair opportunity to respond to the newly focused argument, and the court lacked a transcript of her oral evidence.

5. The findings concerning the three boys were also set aside. Lord Wilson considered that a fresh inquiry into the integration of this close sibling group might make T’s habitual residence relevant to the position of her brothers. Lady Hale, with whom Lord Sumption agreed, reached the same disposition but would have held more broadly that a child’s state of mind is relevant at every age, with its weight depending on age and maturity.

6. Rule 16.2 of the Family Procedure Rules 2010 makes the child’s best interests the threshold for party status. Joinder in Convention proceedings should remain exceptional because of possible delay, expense, intrusion and damage to family relationships. T nevertheless had a standpoint about her own state of mind which neither parent could represent. Joinder was therefore in her best interests, although the High Court retained a wide discretion over the form and extent of her participation.

• United Kingdom Supreme Court: In [2014] UKSC 1, allowed the appeals, set aside the findings of habitual residence concerning all four children, remitted that issue to the High Court and held that T should have been made a party.
• Court of Appeal: In [2013] EWCA Civ 1058, upheld the findings of habitual residence and the refusal of party status. It held that T should not be returned and remitted the issue whether returning the younger children without her would place them in an intolerable situation.
• High Court, Family Division: In [2013] EWHC 1383 (Fam), Cobb J held that all four children were habitually resident in Spain and ordered their return. He found that T objected to returning but declined to exercise his discretion against return, and he refused to make her a party.