LC (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Hodge,Lord Sumption,Lady Hale,Lord Wilson,Lord Toulson |
| Judgment Date | 15 January 2014 |
| Neutral Citation | [2014] UKSC 1 |
| Date | 15 January 2014 |
| Court | Supreme Court |
[2014] UKSC 1
Lady Hale, Deputy President
Lord Wilson
Lord Sumption
Lord Toulson
Lord Hodge
Father
Frank Feehan QC Christopher Hames
(Instructed by Goodman Ray LLP)
Mother
Henry Setright QC Edward Devereux Michael Gration
(Instructed by Dawson Cornwell)
Child TM
David Williams QC Jacqueline Renton
(Instructed by The International Family Law Group LLP)
Children LR, AG and NA
Teertha Gupta QC Penny Logan
(Instructed by CAFCASS Legal Services)
Intervener — reunite
International Child
Abduction Centre
James Turner QC Katy Chokowry
(Instructed by Bindmans LLP)
Heard on 11 November 2013
Lord Wilson (with whom Lord Toulson and Lord Hodge agree)
Now that it is clear that the test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social and family environment there, may the court, in making that determination in relation to an adolescent child who has resided, particularly if only for a short time, in a place under the care of one of her parents, have regard to her own state of mind during her period of residence there in relation to the nature and quality of that residence? In my view this is the principal question raised by these appeals.
The appeals are brought within proceedings issued by a mother against a father for the summary return of their four children from England to Spain pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Convention") and to section 1(2) of the Child Abduction and Custody Act 1985 ("the 1985 Act").
The father is a UK national aged 47 and lives in the Thames Valley. The mother is a Spanish national aged 46 and lives in Madrid. The four children are T, a girl, who was born in August 2000 and is now aged 13; L, a boy, who was born in December 2002 and is now aged 11; A, a boy, who was born in November 2004 and is now aged 9; and N, a boy, who was born in December 2008 and is now aged 5. All four children were born in England. They are Spanish nationals and are presumably also UK nationals. They currently reside with the father.
At all times until July 2012, when the relationship between the parents broke down, the family had lived in England and had gone for holidays to Spain in order, in particular, to see the maternal grandmother and the other maternal relations. On 24 July 2012 the mother took the four children to reside in Spain. They resided in Spain until 23 December 2012, when they returned to England for what was agreed between the parents to be no more than a holiday with the father which was to end on their return to Spain on 5 January 2013. But the children did not then return to Spain. They have remained in England ever since.
In the mother's proceedings under the Convention for the summary return of the children to Spain, instituted on 21 January 2013, the father made an interlocutory application under rule 16.2 of the Family Procedure Rules 2010 (SI 2010/2955) for T to be made a second respondent and to be represented by a children's guardian. On 12 April 2013 Cobb J dismissed the application. The same judge heard the mother's substantive application over three days in May 2013 and received oral evidence from the parents and from Ms Vivian, an officer in the High Court team of the Children and Family Court Advisory and Support Service ("Cafcass"). By a reserved judgment, [2013] EWHC 1383 (Fam), Cobb J explained his reasons for then ordering that all four children be forthwith returned to Spain.
Four issues were raised for Cobb J's determination.
First, the father disputed that the children had been habitually resident in Spain on the date of his retention of them in England, namely on 5 January 2013, and he therefore contended that the retention was not wrongful under article 3 of the Convention. He contended that they had not acquired a habitual residence in Spain at any time between 24 July 2012 and 5 January 2013 and, in particular, that he had not consented to their going to Spain for longer than a holiday in the summer 2012. The result (contended the father) was that they had never lost their habitual residence in England. Cobb J rejected these contentions. He found that in July 2012 the father had agreed with the mother that she should take the children to reside in Spain indefinitely and that, partly for that and partly for another reason which I will explain in paras 28 and 29, all four children had lost their habitual residence in England on or shortly after 24 July 2012, had acquired a habitual residence in Spain during the autumn 2012 and had continued to have it on 5 January 2013. The judge therefore held that the retention was wrongful under article 3.
Second, the father contended, pursuant to article 13 of the Convention, that the three older children objected to being returned to Spain and had attained an age and a degree of maturity at which it was appropriate to take account of their views. Cobb J upheld the contention that T objected to being returned to Spain and had attained the requisite age (then 12 years and nine months) and degree of maturity. He found, by contrast, that, although L and A had also attained an age and a degree of maturity at which it was appropriate to take account of their views, their expressed wishes not to return to Spain had the character only of preferences rather than of objections.
Third, the father contended, also pursuant to article 13, that there was a grave risk that the return of the children to Spain would place one or more of them in an intolerable situation. Cobb J rejected this contention.
Fourth, the father contended that, insofar as Cobb J might have upheld either his second or third contentions in relation to any of the children, he should exercise the discretion thereby conferred on him by article 13 to decline to order the return of that child to Spain. Notwithstanding that he had indeed upheld the father's second contention in relation to T, Cobb J decided not to exercise his resultant discretion to decline to order her to return to Spain.
The father appealed to the Court of Appeal against Cobb J's order. But there were three further appellants, namely, T, L and A. Following Cobb J's order T had consulted a solicitor, who had concluded that she had sufficient understanding to give instructions in the matter; and L and A had consulted another solicitor, who had concluded that they too had sufficient understanding to give instructions. At an interlocutory hearing a single Lord Justice granted permission to all three of them to appeal against Cobb J's failure to make them parties to the proceedings. The Court of Appeal was later to express some doubt (which it put to one side) whether it was open to T to appeal against Cobb J's dismissal of an application made by the father rather than by herself. In fact, since she had been adversely affected by the dismissal, she did have the requisite status to bring an appeal: George Wimpey UK Ltd v Tewkesbury Borough Council [2008] EWCA Civ 12, [2008] 1 WLR 1649. But, on any view, the permitted appeal of L and A was highly problematic in that no one had suggested to Cobb J that they should become parties.
On 1 August 2013 the Court of Appeal heard the appeals and on 15 August 2013 it handed down its judgments, [2013] EWCA Civ 1058. Black LJ delivered the substantive judgment and Hallett and Gloster LJJ agreed with it. It is against two of the orders which the court then made that the present appeals are brought.
The Court of Appeal dismissed the appeals not only of L and A but also of T against Cobb J's failure (or, rather, in T's case, his refusal) to make them parties to the proceedings. T now appeals against the dismissal in relation to her. This is the subsidiary appeal before the court.
There were in effect three grounds of the father's appeal to the Court of Appeal.
First, he contended that Cobb J had been wrong to hold that the children had been habitually resident in Spain on 5 January 2013. He argued not only that the judge had been wrong to find that he had consented to their removal to Spain for longer than the summer holiday 2012; but also that, on the evidence, they had never been integrated in the Spanish environment to any significant degree and, more specifically, that the judge had failed to consider Ms Vivian's reports of statements by the three older children to her that they had never considered that Spain had become their home.
The Court of Appeal rejected this first ground of appeal. It is against its refusal to set aside the judge's conclusion that the children had become habitually resident in Spain by 5 January 2013 that the father and T appeal. These are the primary appeals before the court. In rejecting the first ground the Court of Appeal held that the judge had not been wrong to find that the father had consented to the removal of the children for an indefinite period. There is no remaining issue in that specific regard: that the father consented to it is therefore now an established fact. The Court of Appeal also held that the judge had been entitled to find that the children had achieved some degree of integration in Spain; and, more specifically, that, insofar as their perceptions were relevant to their integration (which, without deciding, the court conceded was possible), Cobb J had sufficiently considered them.
Second, the father contended that Cobb J had been wrong to characterise the wishes of L and A not to return to Spain as only preferences rather than as objections. The Court of Appeal rejected this ground.
Third, the father contended that, having found that T objected to being returned to Spain...
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