Habitual Residence: Children and Parents.

UntitledWith my first Professional Skills Course completed yesterday I came back to the office today well and truly exhausted. The Course, Financial and Business Skills, operated over three days and culminated in an extremely time constrained exam. By the end of the exam my arm was aching, my head was sore and I was ready for bed. I am told this is the most difficult of all the Professional Skills Courses that you have to take as part of your training contract; however everyone I have spoken to opted to do three non-examinable electives. I, on the other hand, have opted to do the Higher Rights of Audience course which comes with the happy edition of three exams at the end.

In other news upon my return to the office this morning I began to work on an ongoing child matter, which raises the question of jurisdiction. In this particular case the question surrounds habitual residence. Article 3 of the council regulation (EC) No 2201/2003 of 27th November 2003 governs jurisdiction and covers habitual residence. In addition on the 9th of September 2013 the Supreme Court handed down judgement in the landmark case of A (Children) (AP) [2013] UKSC 60. The Court stated that the correct test was the European test for habitual residence of a child set out in both the cases of A (Case C-523/07) [2010] Fam 42, and Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22. This test seeks to identify “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. The case went on to state that “habitual residence is a question of fact and there can be no rule that a child automatically takes the habitual residence of its parents. However, the social and family environment of a young child is shared with its carers; therefore the integration of those persons also requires assessment.” This leaves the area somewhat unresolved.

In marches the case of LC (Children) (No 2) [2013] EWCA Civ 1058. The Judgement in this case was handed down on the 15th January 2014. The Supreme Court ruled that a child can have a separate and distinct habitual residence from that of the parent with whom they live. This cased revolved around four children aged 4, 8, 10 and 13 years. The children’s father is a British national, whilst their mother is a Spanish national. All four children had lived in England until the summer of 2012 when the relationship between the mother and father broke down. At this point the mother took all four children to live in Spain. The Children lived in Spain for four months before visiting their father in England over the Christmas holidays. The father did not return the children to Spain following their visit claiming that the children had expressed a desperate wish to remain living in England. The mother then applied to the High Court for return of the Children. The father resisted this application, stating that the Children had never been habitually resident in Spain and that they did not wish to return. The High Court found in the mother’s favour and ordered that they be returned to Spain. The father and the three eldest children separately appealed against this decision to the Court of Appeal. The Court of Appeal held that the eldest child should remain in England and the case should be remitted back to the High Court in order to consider the return of the younger three children to Spain. This would cause them to be separated from their elder sibling. The judgement from the Court of Appeal can be found here: LC (Children) [2013] EWCA Civ 1058.

The Court of Appeal in making their judgement didn’t consider whether the High Court was correct in its finding that all four children had lost their habitual residence in England and had gained habitual residence in Spain during the four months that they had lived there. With the High Court deciding that the children had gained habitual resident in Spain during these four months, the mother could use EU legislation to seek the return of the eldest child notwithstanding the Court of Appeal decision.  The father and the eldest child again appealed this time to the Supreme Court on the grounds that the High Court had been wrong to find that the children had lost their habitual residence in England during the four months they spent in Spain. The Supreme Court set aside the High Court’s decision in a landmark ruling that stated that a child’s ‘state of mind’ is a relevant factor in deciding where there habitual residence lies, thus by implication stating that it is possible for a child to a different habitual residence from that of the parent with whom they live.

Marilyn Stowe also covered the matter in her blog, the article can be found here: http://www.marilynstowe.co.uk/2014/01/15/supreme-court-says-children-can-have-legal-residence-separate-from-their-parents/

Family Law Week reported on the case and their report can be read here: http://www.familylawweek.co.uk/site.aspx?i=ed126775

Full judgement in the case of LC (Children) (No 2) [2013] EWCA Civ 1058 can be found here: http://www.familylawweek.co.uk/site.aspx?i=ed126774

Photo by MegaBu7 via Flickr under a Creative Commons license

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