UKSC 35
On appeal from:  CSIH 95
AR (Appellant) v RN (Respondent) (Scotland)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 13 May 2015
Kate Dowdalls QC
(Instructed by Family Law Matters Scotland LLP)
James Turner QC
(Instructed by Macnabs LLP)
|Intervener (Reunite International Child Abduction Centre)
Written submissions only
Teertha Gupta QC
(Instructed by Dawson Cornwell)
|Intervener ( Children and Families Across Borders)
Written submissions only
Deirdre Fottrell QC
(Instructed by Freeman Solicitors)
|Intervener (International Academy of Matrimonial Lawyers)
Written submissions only
Timothy Scott QC
(Instructed by SKO Family)
LORD REED: (with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Hughes agree)
The proceedings below
"After considering all the relevant evidence I am satisfied that the children had not immediately before 20 November 2013 lost their habitual residence in France. They had both been born there and lived there in family with their parents until 26 July. This was a French family living in France. There is nothing which happened thereafter which persuades me that they had ceased to be habitually resident in France. I conclude from the evidence and productions presented that the stay of the respondent and the two children in Scotland was to be of limited duration, consisting of the period of her maternity leave. I do not regard the sale of the family home in Narbonne as evidencing a joint intention to leave France for good. I am not persuaded that there was a joint decision to uproot themselves from France and relocate permanently to Scotland. The petitioner has his own expanding business in Narbonne, for which he relies on his livelihood (sic) and in order to maintain the respondent and children. He speaks little or no English. I reject as fanciful any suggestion that he intended to set up a business in Scotland. That would have involved abandoning his established business in France and attempting to set up a business in a country where he did not speak the language and had no obvious prospect of succeeding. He continued to live and work in France after the respondent and children came to live in Scotland, although he visited them regularly. The respondent and children returned to France on two occasions after their move to Scotland. Certain of the children's belongings were in storage in France. The lease of the property in which the respondent and children were living in Scotland was in her name alone. Nothing in the communications between the parties indicates a joint intention to uproot themselves from France and relocate permanently to Scotland."
The Lord Ordinary therefore granted the father's application.
"If the salient facts of the present case are approached in accordance with the guidance summarised earlier, the key finding of the Lord Ordinary is that the children came to live in Scotland. The real issue is whether there was a need for a longer period in Scotland before it could be held that there had been a change in their habitual residence. For our part, in the whole circumstances we would view four months as sufficient." (para 14)
"2. The concept of 'habitual residence' under article 8(1) of Council Regulation (EC) No 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. 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. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case." (p 69)
"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." (para 55)
"In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case."
"At first instance in DL v EL  FLR 163, Sir Peter Singer compared the French and English texts of the judgment, which showed that the French text had almost throughout used 'stabilité' rather than permanence and in the one place where it did use 'permanence' it was as an alternative to "habituelle": paras 71 et seq."
It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.
The present case
"I conclude from the evidence and productions presented that the stay of the respondent and the two children in Scotland was to be of limited duration, consisting of the period of her maternity leave."
He then referred to aspects of the evidence which bore upon that issue, stating that he did not regard the sale of the family home in France as evidencing "a joint intention to leave France for good", and that he was not persuaded that there was "a joint decision to uproot themselves from France and relocate permanently to Scotland". In that regard, he referred to the father's business interests in France, his limited command of English, the fact that he continued to live and work in France, the fact that the mother and children had visited him there, the fact that certain of the children's belongings were in storage in France "after the [mother] and children came to live in Scotland", and the fact that the lease of the house in Scotland was in the mother's name alone. He then concluded his discussion of the issue of habitual residence:
"Nothing in the communications between the parties indicates a joint intention to uproot themselves from France and relocate permanently to Scotland."
"If the salient facts of the present case are approached in accordance with the guidance summarised earlier, the key finding of the Lord Ordinary is that the children came to live in Scotland."
In other words, following the children's move with their mother to Scotland, that was where they lived, albeit for what was intended to be a period of 12 months. Their life there had the necessary quality of stability. For the time being, their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on, the more deeply integrated they had become into their environment in Scotland. In that context, the question the Extra Division asked themselves did not indicate any error of approach. Nor did their answer:
"For our part, in the whole circumstances we would view four months as sufficient."