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In the matter of LC (Children) (No 2) [2014] UKSC1

Judgment Handed Down: 15th January 2014

In LC (Children) No.2, a five member panel of the Supreme Court were asked to pass judgment on the on what is to be taken into account regarding whether a child is habitually resident in a place for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction 1980 and s.1(2) Child Abduction and Custody Act 1985. The test is effectively whether there is some degree of integration in a social or family environment and the question to be answered was whether the child state of mind is a relevant factor as to whether there is the requisite level of integration.

This case arose in circumstances where a Spanish mother and an English father split up whilst living in England. They had four children ranging from 5 to 13 years old. After the split, in July 2012, the mother and children moved to Spain where they lived with the maternal grandmother. In December 2012, the children visited their father for the Christmas and New Year period but then missed their flights back to Spain in January as two of the youngest children had hidden their passports.

The mother applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the children to be returned and the High Court sanctioned their return; finding that they had been wrongfully retained by their father. The Court of Appeal dismissed the father’s appeal in relation to the youngest three children and upheld the High Court’s ruling that they were habitually resident in Spain. However, the eldest daughter, T, had expressed a clear intention that she did not wish to return to Spain and the Court of Appeal therefore remitted the case in respect back to the High Court for reconsideration stating that considerable weight should have been given to T’s state of mind. This would need to be reconsidered in light also of whether it would be intolerable for T not to return with her three younger siblings.

In the Supreme Court, Lord Wilson gave the leading judgment where he accepted that ordinarily if a child lawfully goes to reside with a parent, it would be unusual for the child not to acquire habitual residence there too. In unusual cases though, similarly to LC (Children) No.2, “there must be room for a different conclusion; and the requirement of some integration creates room for it perfectly” (paragraph 37). Therefore, where the period of residence is relatively short, such as the two weeks spent with the father in LC (Children) No.2, habitual residence may not be demonstrated. However, in cases involving adolescents, or children who should be treated as adolescents due to their maturity, Lord Wilson made it clear that the child’s state of mind should be taken into account when determining whether they are habitually resident with that parent.

“[R]eferences have been made to the “wishes” “views” “intentions” and “decisions” of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent’s habitual residence is her state of mind during the period of her residence with that parent” (paragraph 37).

The Supreme Court therefore set aside the judgment that T was habitually resident in Spain although resiled from substituting a judgment that she remained habitually resident in England. The case was remitted back to the High Court for redetermination taking into account T’s state of mind.

Interestingly, Lady Hale and Lord Sumption held the view that the state of mind principle would apply to younger children too; the difference being evidential (paragraph 58).

Full case transcript can be accessed here:

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