Wednesday, January 15, 2014

Supreme Court hands down judgment in In the matter of LC (Children)

Supreme Court - Image: jay galvin

The Supreme Court has today handed down judgment in In the matter of LC (Children).

The Issues
(1) Whether, and if so to what extent, children’s views are relevant in the evaluation of their habitual residence, and
(2) When should a court join a subject child as a party to Hague Convention proceedings.

The Facts
The case concerns the alleged wrongful retention of four children: T aged 13, L aged 10, A aged 8 and N aged 4 (“the Children”). Their father is British, living in England. Their mother is Spanish, now living in Spain. The parent’s relationship ended in early 2012, soon after which mother took the Children from this jurisdiction to Spain to start a new life, without father’s consent. The Children came back to England for a holiday at Christmas 2012 and did not return to Spain. Mother applied for the return of the Children to Spain, pursuant to the Hague Convention 1980. Father resisted the application. The High Court ordered the Children be returned to Spain. Father and T, L & A appealed to the Court of Appeal. The Court of Appeal allowed the appeal on a single ground, finding that T, the eldest child, should stay in England and remitted back to the High Court the question whether it would be intolerable under Article 13b of the Hague convention to separate L, A and N from T. The trial judge’s decisions on habitual residence and in respect of L and A’s non-objections were upheld at the Court of Appeal. Father now seeks permission to appeal in respect of the Court of Appeal’s decision on habitual residence and child’s objections. T appeals on habitual residence and on the point that T should have been separately represented at the trial before Cobb J.

The Decision
The Supreme Court unanimously found that T’s assertions about her state of mind during her residence in Spain in 2012 were relevant to a determination whether her residence there was habitual. Accordingly, the court set aside the conclusion that T was habitually resident in Spain on 5 January 2013 and remitted the issue to the High Court for fresh consideration. The Supreme Court also set aside the finding of habitual residence in respect of the three younger children so that the issue can be reconsidered in relation to all four children.

The Supreme Court unanimously also concluded that T should have been granted party status and that the Court of Appeal should have allowed her appeal against the judge’s refusal of it.

You can read a press summary of the judgment here, the full judgment here (PDF - HTML version here) and the Court of Appeal judgment here.

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