LC v RRL and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Wood,T,A,N |
| Judgment Date | 16 May 2014 |
| Neutral Citation | [2014] EWFC 8 |
| Date | 16 May 2014 |
| Court | Family Court |
| Docket Number | Case No: FD13P00122 |
[2014] EWFC 8 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr Justice Roderic Wood
(In Private)
Case No: FD13P00122
Mr H Setright QC and Mr E Devereux (instructed by Dawson Cornwell) appeared on behalf of Appellant
Mr F Feehan QC and Mr C Hames (instructed by Goodman Ray) appeared on behalf of Respondent
Mr D Williams QC and Miss J Renton (instructed by The International Family Law Group LLP) appeared on behalf of T
Mr S Kearney appeared on behalf of the Guardian
Hearing dates: 12 and 13 May 2014
The Proceedings
These protracted proceedings are brought on behalf of a mother of four children under the Child Abduction and Custody Act 1985, and Schedule to that Act, The Convention on the Civil Aspects of International Child Abduction, herein after called "The Convention", and Council Regulation (EC) No. 2201/2003, herein after referred to as "The Regulation."
The Parties: Representation
The applicant mother seeks return orders The Kingdom of Spain ("Spain") in respect of all four of the subject children pursuant to Article 12 of the Convention and Articles 10 and 11(8) of the Regulation. However, as appears below she says (at times) that she will not enforce the order against her daughter T. I shall refer again to the mother's position in respect of T. She, that is the mother, is represented by Mr. Henry Setright QC and Mr. Devereux.
The first respondent is the father of all four children. He opposes return orders in respect of all four. He is represented by Mr. Frank Feehan QC and Mr. Christopher Hames. The three youngest children (all boys) are the second, third and fourth respondents, represented by their Guardian, Miss Sarah Vivian. Counsel instructed to argue their case is Mr. Kearney. The solicitor for the boys is Miss Logan of CAFCASS Legal. All the boys oppose return orders.
T has her own legal team. Her solicitor/guardian is Miss Helen Blackburn. She instructs on T's behalf Mr. David Williams QC, and Miss Jacqueline Renton. T, likewise opposes a return order.
Background Agreed Facts
As will appear below in more detail, this case has previously been before Mr. Justice Cobb in May 2013. His judgment is reported at 2013 EWHC 1383 (Fam). It has been before the Court of Appeal in August of last year. The reference for that judgment is 2013 EWCA Civ. 1058. Finally, the United Kingdom Supreme Court heard argument on the matter in November of last year, and gave their judgment in January of this year. The reference for their judgment is 2014 UKSC1.
For the purposes of the Supreme Court the parties prepared a statement of agreed facts and issues. In it, amongst other material, is a forensic chronology split into three parts. The hearings, and the outcome of them, before Mr. Justice Cobb are summarised in paragraphs 11 to 22. The subsequent proceedings and their outcome in the Court of Appeal are summarised in paragraphs 23 to 33. The preliminary steps in the application to the Supreme Court and the advocates' outline submissions as to the issues for that court's determination are set out in summary form in paragraphs 36 to 41.
I shall not take up time by repeating that material, instead, for ease of reference and for a bare outline I attach it to this judgment marked "Schedule".
The Supreme Court handed down its judgments on 15 th January this year. They remitted to this court for further consideration a question to add to the question previously remitted by the Court of Appeal.
The Questions
Those questions are, in chronological order:
(i) The Court of Appeal: in the light of their order discharging Cobb J's return order in respect of T, would there be a grave risk that the return of the boys to Spain would expose them to physical or psychological harm or otherwise place them in an intolerable position by virtue of their separation from T?
(ii) The Supreme Court: were all, or any, of the children habitually resident in Spain on the relevant date, namely, 5 th January 2013, and what order should be made in the Convention proceedings in respect of the three boys, who are the three youngest children, L, A and N.
It is logically more appropriate to consider the Supreme Court's question first for if the children, or any of them, were not habitually resident in Spain at the relevant date (namely, 5 th January last year when the Father retained them in this country at the conclusion of an agreed Christmas holiday) there would be no jurisdiction to make a return order in respect of that child (see Article 4 of the Convention). If this court were to find that habitual residence had not been established in Spain, that has the further consequence that a Spanish court could not make an order under Article 11(8) of the Regulation, or, at least, if made, preclude its enforcement here [see paragraph. 22 of Lord Wilson's judgment in the Supreme Court, and further see paragraphs 72 to 80 below for the current position in the Spanish proceedings].
Habitual Residence: The Law: Summary
Although counsel in their different skeleton arguments prepared for the start of this hearing have each quoted extensively from the relevant recent Domestic and Strasbourg Jurisprudence, there is effectively agreement amongst them as to the test this court now has to adopt in considering whether or not habitual residence has been established. Their differences, such as they are, relate to the emphasis to be applied to different parts of the test in relation to the facts they ask me to find in this case, or which are agreed.
Let me therefore attempt a summary of the current tests drawn primarily, but not exclusively, from three authorities:
(i) A v. A (Child: Habitual Residence) , 2013 UKSC 60;
(ii) Re: KL (Abduction: Habitual Residence: Inherent Jurisdiction)
(iii) 2013 UKSC 75 ; and,
(iv) This case in the Supreme Court Re: LC (Abduction: Habitual Residence: State of Mind) 2014 UKSC 1 .
Habitual residence is a question of fact to be considered specifically on all the facts of the case. It is not a term of art, and there should be no formulaic approach when determining it.
It is the "place which reflects some degree of integration by the child in a social and familial environment." Relevant considerations include, but are not limited to, "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."
The intentions of the parent in assessing the habitual residence of a child is one factor amongst many, although it may well, along with the social and family environment of the parent, and that parent's level of integration in that environment, be of greater significance in the case of a young child or infant.
Usually an "appreciable period of time" will be needed to establish a new habitual residence.
The judgments of the Supreme Court in this case (see Re: LC cited above) have for the first time in any focused way considered the relevance and weight to be attached to the state of mind of an adolescent child in determining habitual residence (the majority – comprising Lords Wilson, Toulson and Hodge) and also of L and A (the minority – comprising Lady Hale and Lord Sumption). Ancillary questions also arise (see below). I have approached my findings by adopting and applying the minority view, although I emphasise for the avoidance of doubt that I would have come to the same conclusions had I applied only the majority approach.
Before turning to the facts, it is necessary to look in greater detail at the judgments in Re: LC.
Having set out the essential background, Lord Wilson answered the question of whether or not the state of mind of an adolescent should be considered (summarised in paragraph 17 above), giving the answer "yes", and gave his reasons for so doing in paragraph 37, which reads as follows:
"Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too. The same may be said of a situation in which, perhaps after living with a member of the wider family, a child goes to reside there with both parents. But in highly unusual cases there must be room for a different conclusion, and the requirement of some integration creates room for it perfectly. No different conclusion will be reached in the case of a young child. But, where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older child's residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may — possibly – have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the "wishes" "views" "intentions" and "decisions" of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent's habitual residence is her state of mind during the period of her residence with that parent. In the Nilish Shah case, cited above,...
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