Wed, 19 Mar 2014
By Sara McCarthy
Over the last 12 months there have been substantial developments in the law on habitual residence following judgments handed down from the Supreme Court, most notably in the cases of Re A (Children: Habitual Residence)  UKSC 60, and the recent decision of LC (children)  UKSC 1, handed down in early January. This article will focus on the changes brought about by these two decisions.
Prior to these judgments and their subsequent implementation, the lower courts have grappled with the uncertainty of balancing the UK tests on Habitual Residence propounded in R v Barnet London Borough Council, Ex p Shah  2 AC 309, and the European test as outlined in the CJEU’s decision in Mercredi v Chaffe (Case C-497/10 PPU).
The key concepts in Lord Scarman’s definition in Shah were that the residence must be ‘voluntarily’ adopted and that it must be for ‘settled purposes.’
In Mercredi v Chaffe it was held that the child’s habitual residence is the place that reflects some degree of integration by the child in a social and family environment. In applying this test the court should take account of all circumstances of fact specific to that individual case, i.e. duration, regularity, conditions and reasons for the stay in that state and connections with it. If the test led to the conclusion that the habitual residence could not be established then jurisdiction would have to be determined on the basis of the child's physical presence, under Art 13.
In Re A it was confirmed that the test derived from Ex p Shah was now outdated and should be abandoned.
Re A (Children: Habitual Residence)  UKSC 60
In this case, the issue for the Supreme Court was whether the High Court has the jurisdiction to order a return to England and Wales of a child who has never lived or been in the country, on the basis that either he is habitually resident here or that he has British nationality.
Father (F) was Pakistani-British and the Mother (M) Pakistani. M moved to England after their wedding in Pakistan in 1999. M and F had 3 children together who were born in the UK. F and the children have dual British and Pakistani nationality, M had indefinite leave to remain in the UK.
The marriage broke down in 2006 and in 2008 M complained of physical abuse on the part of the F. On 13th October 2009, M left with the three children for Pakistan, not knowing that F was already there.
During her stay in Pakistan, M was coerced by F's family to reconcile with F. She returned to F's family home in Pakistan with the children and gave up their passports but retained her own. She made it clear that she wished to return to the UK.
In February 2010, M became pregnant with H, the subject child. After his birth, F applied for custody of the children in Pakistan. M was helped by a refuge in England to return to this jurisdiction, although she had to leave the children behind.
The proceedings began on 20th June 2011 whereby Peter Jackson J made all four children wards of court and ordered that F return them to this jurisdiction forthwith. Freezing orders were made against F on 31st October 2011 as a means of persuading F to comply with the court's orders.
On 20th February 2012, Parker J determined that all four children were habitually resident in England and Wales - she was satisfied that M never intended that the children should live in Pakistan. H too was habitually resident here, having been born to a mother who was habitual residence in this jurisdiction and had been kept in Pakistan against her will.
F applied for permission to appeal to the Court of Appeal. The court unanimously dismissed F's appeal in respect of the three older children, but by a majority his appeal in respect of H was allowed on the basis that to have habitual residence in a country it requires the child to be 'physically present' there. Thorpe LJ dissented.
M appealed to the Supreme Court.
Supreme Court Decision:
1. There should be one unified test for habitual residence in relation to children cases. The correct test is the European one, as set out in Mercredi v Chaffe. The test formally used in ex part Shah was now redundant.
2. Habitual residence is a fact. There can be no rule that a child automatically shares the habitual residence of its parents, although the social and family environment of a child is usually synonymous with that of its parents and so analysis of their integration is also required as part of the assessment of the child's habitual residence.
3. Lord Brandon's propositions as set out in Re J (A Minor: Custody Rights_  2 AC 568 regarding acquisition of habitual residence were best approached as helpful generalisations of fact rather than propositions of law.
The court did not fully resolve the central issue of whether physical presence in the country was required in order to obtain habitual residence. Baronness Hale (with whom all save Lord Hughes agreed) was of the view that it was not possible for a child to be integrated into the environment of a country in which he had never stepped foot. Lord Hughes expressed the view that the child was in fact habitual residence in England and Wales at the time when the court was seized. Although agreeing with the Baroness Hales' view on the part of the majority, he considered that a prerequisite of physical presence in order to establish habitual residence would be an unwelcome rule of law.
The Lords concluded that there was a basis of jurisdiction , which was engaged in the case on the basis of the child having British nationality, and that it would not be necessary to exercise the other basis of jurisdiction on the grounds of habitual residence. The matter was handed back down to Parker J, and M was given liberty to return to the Supreme Court for a reference to the CJEU if Parker J concluded that it would not be appropriate on the facts to exercise the jurisdiction based on nationality.
LC (Children) (No 2)  UKSC 1
The law on habitual residence has now been further developed by the decision in LC (Children) (No 2)  UKSC 1 officially handed down on 15th January 2014.
The most important part of this decision is that a child can now have separate habitual residence from the parent with whom he/she resides. Previously the Habitual Residence of the child had been intertwined with that of the parent with whom he/she is living.
Throughout the hearing, Lord Wilson raised the notion of the child's state of mind. With this in mind the court ruled unanimously that a child's 'state of mind' is a relevant factor in determining whether he or she has lost or indeed gained habitual residence and that by extension their state of mind and therefore their HR may be different from that of the relevant parent.
Lord Wilson, delivering the lead judgment said at :
'Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too. However in highly unusual cases there must be room for a different conclusion, and the requirements for some degree of integration provides such room... references 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.'
This decision built on the aforementioned judgment in Re A whereby the court stated that the official approach was the 'degree of integration in a social and family environment'. In Re A the Supreme Court rejected the earlier principle that a child could not form a habitual residence separate from that of the parent with whom he/she lives and that a child's state of mind would be of significance in such a determination. Lady Hale considered in her judgment that the question of a state of mind cannot be confined only to adolescent children.
This case concerned four children aged 13,10,8 and 4.
The Mother (M) is Spanish and the Father (F) is British. All children were born in England and had lived there for their whole lives until the Summer of 2012. Following a breakdown in the parents' relationship, M moved all four children to Spain to live with her. They were there for approximately 4 months.
Upon agreement with M, the children came to England in Christmas 2012 to visit F. F stated that all four children had expressed a strong wish to stay in the UK, and did not return them to Spain at the end of the agreed holiday.
M made an application to the High Court of England and Wales under the Hague Convention 1980 to return the children to Spain. F contended that the children were not habitually resident in Spain at the time of the wrongful retention, and also raised the defence of child's objections under Article 13(b).
Cobb J ruled that the children had in fact gained habitual residence in Spain and ordered their summary return.
F appealed to the Court of Appeal and the matter was heard in August 2013. The three eldest children applied, and were granted, permission to be joined as parties to that appeal. The appeal succeeded but on a narrow ground. it was held that the judge had been wrong in his assessment of the discretionary exercise in relation to T (the eldest child) and that her objections were such that an order should not be made for her return. The Court of Appeal granted permission to return the case back to the High Court on the basis that splitting the three siblings would cause a situation of intolerability.
F and T appealed to the Supreme Court. They were granted permission and the court considered the following grounds:
- (i) whether T was able, on the facts of the case (as found by Cobb J), to determine her own habitual residence (independently of either, or both, of her parents) and whether that means that the mother cannot satisfy Article 3 of the 1980 Hague Convention; and
- (ii) whether Cobb J was correct, as he was found to be by the Court of Appeal, to decline to make T a party to the proceedings by virtue of rule 16.2 of the Family Procedure Rules 2010 (“the FPR 2010”), following an application made on 12 April 2013 by representatives of the father for her to be joined as a party.
Aside from the court's landmark finding on habitual residence, the Supreme Court also unanimously held that T should have been granted party status by Cobb J and further that the Court of Appeal should have allowed her appeal on it.
The Court also set aside the finding of habitual residence in respect of the three other children and the case was remitted to the High Court to reconsider whether any or all of the children were habitually resident in Spain during the 4 months in which they lived there with their mother.
This child centered approach of the 'state of mind', though it may prove difficult to ascertain in the case of younger children, shows the importance courts are placing on hearing the child's voice in proceedings, and the furthering by the family courts of the notion of the child as an autonomous being.
Although these landmark decisions are derived from wardship and Hague cases respectively, the guidance given on the meaning of habitual residence is undoubtedly of wider significance to all family law contexts and should provide some clarity to practitioners involved in all cases where habitual residence is in issue.
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