UKSC 75
On appeal from:  EWCA Civ 865
In the Matter of KL (A Child)
Lord Neuberger, President
Lady Hale, Deputy President
JUDGMENT GIVEN ON
4 December 2013
Heard on 18 November 2013
Richard Harrison QC
(Instructed by Bindmans LLP)
Henry Setright QC
(Instructed by Freemans Solicitors)
|Intervener (Reunite International Child Abduction Centre)
Teertha Gupta QC
(Instructed by Lyons Davidson)
LADY HALE (with whom Lord Neuberger, Lord Wilson, Lord Hughes and Lord Hodge agree)
"We join the majority of circuits that 'have adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence'. Nicolson, 605 F.3d 100 at 104 & n 2 (collecting cases). This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. For example, parents' intentions should be dispositive where, as here, the child is so young that 'he or she cannot possibly decide the issue of residency.' Whiting, 391 F 3d at 548-49 (citing English case that looked to parents' intentions because the child was 'two and one-half years old at the time of her abduction'). In such cases, the threshold test is whether both parents intended for the child to 'abandon the [habitual residence] left behind'. Mozes, 239 F.3d 1067 at 1075, see also Whiting, 391 F.3d 540 at 549-50."
The record clearly established that K's presence in the UK was to last for a limited duration, that the father never agreed to any other arrangement, and that there were no circumstances to justify departing from the courts' general practice of finding no change in habitual residence in such cases. Hence by acting upon the Texan court's order the father was not wrongfully retaining K in breach of the mother's rights of custody. The District Court's order was vacated.
"I suggest that his wishes and feelings reported above provide ample evidence of his confusion, sense of other people's expectations of him, and his inability to differentiate between spontaneously arising feelings and more considered views on situations which at his age he struggles to formulate. Hence in my view it would not be advisable to place too much reliance what K had to say."
"Young children experience the world as an environment of relationships and the overwhelming conclusion I draw from the information I have gleaned is that this is a young child who is finding it impossible to please both parents and is feeling far too much responsibility for trying to resolve the acrimony between them. He is clearly affected by the corrosive conflict that has been going on for some time. I suggest that at his young age his wishes and feelings are not the focus of the legal arguments involved in this application to the court."
"The removal or the retention of a child is to be considered wrongful where - (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. . . ."
Hence it is common ground that the father can only succeed in his application under the Convention if K was habitually resident in the United States on either 31 July or 29 August 2012 when the mother's disobedience of the Texan order became wrongful.
"To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration."
In Mercredi, the CJEU also pointed out, at para 55, that:
"An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where . . . the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard, the tests stated in the court's case law, such as the reasons for the move by the child's mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant."
"Habitual residence is intended to be a description of a factual state of affairs, and a child can lose its [sic] habitual attachment to a place even without a parent's consent. Even when there is no settled intent on the part of the parents to abandon the child's prior habitual residence, courts should find a change in habitual residence if 'the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place' [referring to the Scottish case of Zenel v Haddow 1993 SLT 975]."
"A more difficult question is when evidence of acclimatization should suffice to establish a child's habitual residence, despite uncertain or contrary parental intent. Most agree that, given enough time and positive experience, a child's life may become so firmly embedded in the new country as to make it [sic] habitually resident even though there be lingering parental intentions to the contrary [referring again to Clive, loc cit, at p 145]. The question is how readily courts should reach the conclusion that this has occurred. . . . Despite the superficial appeal of focusing primarily on the child's contacts in the new country, however, we conclude that, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned."
That approach is, of course, consistent with the approach of the United States Court of Appeals for the Fifth Circuit in this case (see para 7 above).
"Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, although in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case."
"So the question becomes whether I can on the information presently available to this court reasonably conclude that to leave his mother and London for his father and San Antonio would, at this point, be in his best interests."
He answered that question thus in para 65:
"This is not a case where I would begin to feel justified in making what would be a peremptory return order. I have heard evidence from neither party nor from any witness. I have no Cafcass report directed, as I would need as the barest minimum, to the degree to which KL is secure and settled in his current situation, to ascertain whether he thrives and what he may lack, and importantly to provide some assessment of the likely impact upon him of a move from M to F and from London to Texas."