L-C: UK Supreme Court decision on habitual residence

The UK Supreme Court is today handing down judgment in the Matter of L-C. This completes the trio of international family law cases involving the interpretation of habitual residence that the UKSC granted permission to appeal on in 2013. The hearing took place on 11th November 2012 and so the judgment has taken longer to complete than that in the Matter of KL which was heard on 18th November and delivered on 4th December. I, along with Jacqueline Renton of 4PB, appeared on behalf of the eldest child and we appealed on 2 grounds: that the child's state of mind on matters relevant to integration should have been considered by the court in evaluating habitual residence and that she should have been joined as a party to the proceedings because of the evidence she could give which could not be satisfactorily advanced by the parents. We succeeded on both Grounds. The UKSC was split 3-2 with Lord Wilson delivering judgment on behalf of himself and Lord Hodge and Toulson and Baroness Hale delivering a judgment for herself and Lord Sumption. The outcome is the remittal of the case to the HIgh Court to determine whether the 4 children were habitually residence in Spain at the time of their retention in England. The central issue in relation to the evaluation of habitual residence was the relevance of the 'state of mind' of a child on the issue of whether the child was sufficiently integrated into a social and family environment to be habitually resident. The UKSC affirmed as they had in the Matter of A (July 2013) and KL (December 2013) that the test set out by the CJEU in Mercredi-v-Chaffe and Re A is the definitive test for evaluating habitual residence in ALL matters concerning children; whether domestically or for the purposes of the 1980 Hague Convention or any other family law purpose. The previous English authorities of Ex Parte Shah and others are consigned to legal history. The majority held that the state of mind of an adolescent is relevant to the evaluation of habitual residence and must be considered. In this regard Lord Wilson specifically disapproved of Lord Scarman's dicta in Shah that habitual residence should be evaluated by reference to matters susceptible of objective proof rather than matters of 'state of mind' or 'intention'. The underlying rationale is that in the digital age when most people leave digital footprints by which their contemporaneous state of mind can be evaluated there is no reason to exclude this from consideration or to prioritise objective matters rather than subjective. However the minority considered that the 'state of mind' of a child of any age could be relevant. The UKSC also confirmed that the intentions of the parents, even those with sole parental responsibility are only a part of the evaluation which is a matter of fact. This confirms that even if a parent with sole PR determines to permanently leave the jurisdiction they cannot by that act of will alone terminate the habitual residence of the child. The court will still have to look at all the facts relevant to integration to determine whether at the relevant time the child remained habitually resident in the country. This is a significant change from the previous law where since Re J our courts had applied a rule that if a sole holder of PR determined to leave permanently they could end habitual residence almost the moment they left the shores (or airspace). This will no longer be possible - or at least in most cases will not be. The removing parent will have to severe or very substantially eradicate the integration of the child in order to terminate habitual residence in a short space of time. Whilst with a very young child who has no independent links in school or the community, this may be possible, with school age children and those who have regular contact with extended family (in particular a parent without PR) this will become much more difficult. It has to be said that this approach introduces some tension with the approach taken by the CJEU in JMcB-v-LE in which the right to freedom of movement and the custodial rights of a sole holder of PR were emphasised and which would suggest that a sole holder of PR can lawfully move and consequently shift jurisdiction to the new country of residence. However a fact based assessment will allow of a situation where the parent has lawfully removed the child but the child may remain habitually resident at the time the court is seised and thus the lawful removal can be reversed. On the basis that decisions should be taken on the basis of 'best interests' and not 'parental rights' this must be right but it may take another reference to the CJEU to clarify the tension. The second point of the appeal was the circumstances in which children should be join to Hague Convention proceedings. The court confirmed that the test for joinder is whether it is in the best interests of the child to be joined. This is an argument that I had been advancing since the decision of the House of Lords in Re M and the decision of Ryder J (as he then was) in Re C. Those cases had (inadvertently in respect of the Re M decision) led to a much narrower approach that the FPR provided. Lord Wilson confirmed the FPR test of 'best interests' was the overriding one and that in considering that the court should also consider the contents of PD16. Whilst he stated he did not expect this clarification to routinely lead to representation of children in Hague cases this clarification undoubtedly loosens the constraints which had been created by Re C and Re M. Taken together with in the Matter of A and In the Matter of KL this case represents a clear change of direction on the evaluation of habitual residence of children. The judgment can be found on the UKSC website at : www.supremecourt.gov.uk/news/latest-judgments.html David Williams QC