UKSC 1
On appeal from:  EWCA Civ 1058
In the matter of LC (Children)
In the matter of LC (Children) (No 2)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
15 January 2014
Heard on 11 November 2013
Frank Feehan QC
(Instructed by Goodman Ray LLP)
Henry Setright QC
(Instructed by Dawson Cornwell)
David Williams QC
(Instructed by The International Family Law Group LLP)
|Children LR, AG and NA
Teertha Gupta QC
(Instructed by CAFCASS Legal Services)
|Intervener reunite International Child Abduction Centre
James Turner QC
(Instructed by Bindmans LLP)
LORD WILSON (with whom Lord Toulson and Lord Hodge agree)
"Notwithstanding a judgment of non-return pursuant to article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with section 4 of Chapter III below in order to secure the return of the child."
Section 4 of Chapter III of B2R provides, by article 42(1), that, provided that the judge in the state of habitual residence shall have certified that the parties and, if appropriate, the child were given an opportunity to be heard and that he took account of the reasons for the refusal of the requested court to order the child's return under the Convention, there can be no facility for challenge in the requested state to his order for the child's return. His order "enjoys procedural autonomy": Rinau v Rinau (Case C-195/08PPU)  Fam 51, para 63.
i) she had hated it in Spain;
ii) they had not had a home of their own but only a temporary home in the flat of the maternal grandmother;
iii) they had attended poor schools which the mother had chosen only because they had been local and convenient;
iv) the mother had been pursuing an affair and had neglected them;
v) "Spain has never been home it is a bit unreasonable to say that"; and
vi) she could not settle in Spain.
Ms Vivian reported that L said that:
i) he had liked Spain but not as much as England;
ii) he had really liked his school in Spain but also his school in England;
iii) they had not had a home of their own in Spain;
iv) the mother had given more attention to her boyfriend than to them; and
v) life in Spain had felt weird because he had been away from his normal home for so long.
Ms Vivian reported that A said that:
i) he had wanted to go to live in Spain but, once there, had realised that he had made the wrong decision; and
ii) he had not liked his school in Spain and had made no friends.
Ms Vivian's written summary of these statements was:
"During their time in Spain the children have reported that they have not settled and their mother has not, by their accounts, assisted them to do so."
In her oral evidence she added:
"it was almost like they gave Spain a go and they didn't feel like it was home to them."
i) the test for the determination of habitual residence under the Convention, under B2R and under domestic legislation should be the same (para 35, Lady Hale);
ii) the test set out in the Nilish Shah case, cited above, should be abandoned (para 54(v), Lady Hale); and
iii) the test should be the one adopted by the CJEU in Proceedings brought by A (Case C-523/07)  Fam 42, and affirmed by it in the Mercredi case, cited above, namely "the place which reflects some degree of integration by the child in a social and family environment" (para 54(iii) and (v), Lady Hale).
"53 The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant.
54 As a general rule, the environment of a young child is essentially a family environment determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.
55 That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent..."
In A v A, cited above, this court adopted the propositions in the two latter paragraphs. Lady Hale said, at para 54:
"(vi) The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned."
"27 When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman."
i) T's various assertions to Ms Vivian about her state of mind when in Spain were incidental to an inquiry of which the focus was different.
ii) T's assertions were made after she had left Spain and may not deserve the weight which might attach, for example, to any emails or letters which she might have sent, or to any statements which she might have made on social networking sites, while she was there.
iii) Indeed T's primary purpose was to communicate to Ms Vivian her strong objection to returning to Spain and her purpose may have coloured her descriptions of her state of mind when there.
iv) Cobb J has already rejected as inaccurate T's identification to Ms Vivian of the time when she realised that the family's stay in Spain was intended to be indefinite.
v) Since it is only in the proceedings in this court that the searchlight has directly shone on T's statements to Ms Vivian about her state of mind when in Spain, the mother has had no opportunity to give evidence in response to them or, by counsel, to make detailed submissions about them.
vi) T's statements in that regard require to be weighed against the written and oral evidence which led Cobb J to find that T had achieved some degree of integration in Spain. In relation to her integration, the mother placed before the judge a substantial amount of evidence, including statements not only by herself but also by her mother, her sister and her two brothers and by T's school in Spain, to which in these appeals no specific reference has been made; and in relation to it the mother also gave oral evidence, of which this court does not even have a transcript.
Therefore I do not agree that this court is in a position to regard T's statements to Ms Vivian as determinative of a conclusion that the mother cannot establish that T acquired a habitual residence in Spain.
"(1) The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so."
On any view it is most unusual for the threshold criterion for the making of a case management decision to be a conclusion about a person's best interests. But the meaning of the rule is plain. The best interests of the child represent the threshold criterion and are not just a "primary consideration" as stated in paragraph 7.3 of Practice Direction 16A supplementary to Part 16 of the 2010 Rules. If, and only if, the court considers that it is in the best interests of the child to make her (or him) a party, the door opens upon a discretion to make her so. No doubt it is the sort of discretion, occasionally found in procedural rules, which is more theoretical than real: the nature of the threshold conclusion will almost always drive the exercise of the resultant discretion.
"But whenever it seems likely that the child's views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented."
"In all other cases [than those of alleged settlement], the question for the directions judge is whether separate representation of the child will add enough to the court's understanding of the issues that arise under the... Convention to justify the intrusion, the expense and the delay that may result. I have no difficulty in predicting that in the general run of cases it will not."
When in 2007 Lady Hale identified these factors, the threshold criterion for granting party status to a child in proceedings under the Convention was, as now, whether it was in the child's best interests to do so. The intrusion of the children into the forensic arena, which enables a number of them to adopt a directly confrontational stance towards the applicant parent, can prove very damaging to family relationships even in the long term and definitely affects their interests. So does delay in the resolution of the issue whether they should be ordered to return, albeit perhaps only temporarily, to the requesting state.
i) the adduction of a witness statement by her, or of a report by her guardian, which was focussed upon her account of her residence in Spain including of her state of mind at that time;
ii) her advocate's cross-examination of the mother; and
iii) her advocate's closing submissions on her behalf.
Whether it would have been reasonable for Cobb J to have allowed T to be present in court during the hearing I cannot tell. It would have been for the guardian to decide which of the documents filed in the proceedings should be shown to T.
LADY HALE (with whom Lord Sumption agrees)
"The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant."
Decide or remit?
Some common ground
i) Their mother is Spanish, tri-lingual in Spanish, French and English. Their father is English, but lived in Spain for much of his childhood and is bi-lingual in Spanish and English. The children are also bi-lingual. They have many maternal relatives living in Spain.
ii) They are all Spanish citizens. We have no evidence about whether they are also entitled to British citizenship, although as their father is a British citizen, this seems likely.
iii) Their parents met in Oxford in 1995 and soon began living together, originally in Oxford and latterly in a town in Oxfordshire, but they have never married. The family home is jointly owned by the father and another person.
iv) All three children were born here, T on 27 August 2000, L on 4 December 2002, and A on 2 November 2004, as was their younger brother N, who was born on 29 December 2008.
v) They lived all their lives here with their mother and father until 24 July 2012, when they flew to Spain with their mother.
vi) They all attended school here until the end of the summer term 2012. The boys were at a Roman Catholic primary school. T had also attended that school for her primary education but for the past year she attended a distinguished independent secondary school.
vii) They were accustomed to going to Spain for summer holidays with their mother and without their father.
viii) The parents' relationship had been unhappy for many years and finally broke down in the summer of 2012. The judge found that the father had (albeit reluctantly and in the hope that the situation might change) agreed to the mother taking the children to live in Spain.
ix) The mother bought one way tickets for them all in June 2012. She did not take steps to remove the children from their schools and other activities until July. She did not enrol them in Spanish schools until September. They took only two suitcases with them, leaving many possessions behind in England to be sent on later.
x) In Spain they lived with their maternal grandmother in a spacious apartment in a gated residential development in a prosperous neighbourhood near Madrid, with many of their maternal relatives near by.
xi) They attended schools in the neighbourhood and achieved good results in their first term.
xii) They were unsettled after their father visited for three days in early November, coinciding with A's birthday.
xiii) They came to England with their father for the Christmas holidays on 23 December 2012 and were due to return with him to Spain on 5 January 2013. They did not do so because the boys hid their passports behind the microwave and the father did not find them until it was too late.
xiv) The father applied for a residence order in the Oxford County Court on 10 January 2013. The mother issued these proceedings on 22 January 2013. The children were interviewed twice by Ms Vivian, whose reports are dated 28 February 2013 and 7 May 2013.
"T regards England as her home; it has been her home throughout her childhood and formative years until the move to Spain last year. She acknowledges that she also has family in Spain and recognises that for her mother Spain is home, but she nonetheless feels that her own roots and those of her immediate family are here in this country."