AR v RN

A child’s habitual residence depends on all the circumstances and the degree of integration in a social and family environment. For an infant or young child, the inquiry includes the integration of the person or persons on whom the child depends.

The residence must have stability, but need not be permanent or intended to continue indefinitely. No minimum period of residence applies. Parental purposes and intentions are relevant factors, but neither a shared intention to settle permanently nor the agreement of both parents is essential.

An appellate court should not disturb a lower court’s evaluation where the correct principles were applied unless the conclusion was not reasonably open on the facts.

Two children moved with their mother from France to Scotland in July 2013 with their father’s agreement. It was common ground that they would live there during the mother’s maternity leave for about a year, although the parents disputed their longer-term plans. After the relationship ended, the mother began Scottish residence proceedings. The father sought the children’s return to France under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as incorporated by the Child Abduction and Custody Act 1985.

The Lord Ordinary held that the children remained habitually resident in France and ordered their return. The Extra Division reversed that decision in [2014] CSIH 95, holding that the Lord Ordinary had wrongly treated a shared parental intention to move permanently as essential and that four months in Scotland was sufficient on the facts.

The central issue was whether the children were habitually resident in France immediately before the alleged retention on 20 November 2013.

1. Appeal dismissed. Lord Reed, with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Hughes agreed, held that the Extra Division was entitled to find that the children were habitually resident in Scotland at the material time. They therefore could not have been wrongfully retained there within article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2. Habitual residence is a factual and individual inquiry requiring evaluation of all relevant circumstances. It focuses on the child’s degree of integration in a social and family environment. The purposes and intentions of the parents are relevant, but are only factors. For an infant or young child, the court must assess the social and family integration of the person or persons on whom the child depends.

3. The necessary quality is stability, not permanence. No minimum duration of residence applies. An intention to live in a country for a limited period is compatible with acquiring habitual residence there. A joint parental intention to reside permanently or indefinitely is neither essential nor decisive. There is also no rule that one parent cannot unilaterally change a child’s habitual residence.

4. The Lord Ordinary erred by focusing exclusively on whether the parents had jointly decided to relocate permanently to Scotland. That approach omitted abundant evidence concerning the stability of the mother’s and children’s lives and their integration in Scotland.

5. The Extra Division applied the correct approach. Although the stay was originally intended to last for the mother’s 12-month maternity leave, the children had come to live in Scotland. Their home, social life and predominant family life were there, and their residence had the necessary stability. Its conclusion after four months was reasonably open on the evidence.

6. A lower court’s evaluation of habitual residence is not generally open to appellate challenge where it applied the correct legal principles to the relevant facts, unless its conclusion was not reasonably open to it. The alleged character of the mother’s proceedings as a wrongful retention, and consent under article 13, did not arise for decision.

1. United Kingdom Supreme Court: Dismissed the father’s appeal and affirmed the Extra Division’s conclusion that the children were habitually resident in Scotland.
2. Extra Division, Inner House of the Court of Session: In [2014] CSIH 95; 2014 SLT 1080; [2014] Fam LR 131, reversed the Lord Ordinary. It held that he had erred by treating shared parental intention to move permanently as essential and concluded that the children were habitually resident in Scotland.
3. Outer House of the Court of Session: The Lord Ordinary held that the children remained habitually resident in France and granted the father’s return application.