Habitual residence and a child's state of mind

Family analysis: the relevance of the state of mind of children when determining their habitual residence is examined by David Williams QC, of 4 Paper Buildings, in the light of the Supreme Court judgment in Re LC.
Original news
In Re LC (Children) [2014] UKSC 1, [2014] All ER (D) 62 (Jan) the Supreme Court held that the courts could, in determining the habitual residence of an adolescent child who had resided 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. Further, the child should have been granted party status in the proceedings.
The proceedings had concerned the adolescent child and her three younger siblings who were living with their father in the United Kingdom, but whose habitual residence was found by the High Court and the Court of Appeal to have been in Spain with their mother. The Supreme Court remitted the issue of their habitual residence to the High Court.
What is the significance of the judgment?

The Supreme Court concluded that the state of mind of adolescents, or children who should be treated as adolescents, can be relevant to the determination of their habitual residence. That state of mind can therefore be included in the factual consideration of whether they are to some degree integrated in a social and family environment in that country, which is the test of habitual residence. Lady Hale and Lord Sumption considered that the state of mind of children of any age could be relevant, but ultimately this is a minority view.

Furthermore, in sibling groups where one or more of the group are adolescent and their state of mind can be considered, this could have an impact on the assessment of the habitual residence of the younger siblings. In Re LC only the eldest child, T, was an adolescent, but it was held that in determining the habitual residence of the three younger siblings, the court would have to consider the impact on the sibling group as a whole of a finding that T was not habitually resident in Spain.

The Supreme Court was also clear that it was not the children's views per se which were relevant but their state of mind in respect of matters relevant to integration. It was also very clear that what one was seeking to ascertain was their state of mind contemporaneous with the residence in question rather than their subsequent views about whether they had been integrated.

The state of mind of adolescents is a relevant consideration in the factual evaluation of their degree of integration into a social and family environment. It is only one component to be considered alongside other relevant factors such as home, school, friendships, family links and the reason for their presence in the country. In some cases their state of mind may be very important--in others it may be relatively unimportant. Where adolescents are forced to move very unwillingly with one parent and resist settling in the new country then their state of mind may be very important indeed, particularly when the issue of habitual residence falls to be considered relatively quickly after their arrival. But where adolescents move reluctantly as part of an agreed family relocation and the issue of habitual residence comes up after some considerable time, their state of mind may be relatively unimportant.

Ultimately every case will be different and will require consideration of the facts and the evidence to determine the habitual residence issue.

To what extent does the judgment clarify when a court should join a subject child as a party to Hague Convention proceedings?

It confirms that the overriding test for joinder is whether that would be in the best interests of the child. This has always been the statutory criterion in the Family Proceedings Rules 1991, SI 1991/ 1247, r 9 and the Family Procedure Rules 2010, SI 2010/2955 (FPR 2010), r 16.2--but it had been obscured by cases such as Re D (a child) (abduction: foreign custody rights) [2006] UKHL 51, [2006] All ER (D) 218 (Nov) and Re M and another (children: abduction) [2007] UKHL 55, [2007] All ER (D) 66 (Dec). Lord Wilson has confirmed that the court should apply the statutory test as supplemented by FPR 2010, PD 16A.

What are the implications for practitioners and their clients?

Habitual residence

When the habitual residence of adolescent children is in issue consideration will always need to be given to whether it is in their best interests to be joined to the proceedings to ensure that their position is protected and in particular that any evidence they might give as to their state of mind is put before the court in a way that is untainted by either of the parents. In considering this one needs to look at:

  • whether they need representation or whether their interests can be met by an interview with an officer of the Children and Family Court Advisory and Support Service (Cafcass) or by seeing the judge, although the latter is unlikely to be a useful route as the guidance on seeing children makes clear its purpose is not the extraction of evidence
  • the balance between the harm of the children being drawn into the proceedings and the benefits of being joined
  • whether it will cause delay

In addition one needs to look at what evidence can be given in respect of the adolescents' state of mind. Early consideration must be given to preserving texts, phone messages, Facebook posts, Twitter, Instagram and any other form of contemporaneous evidence. Journals, diaries, letters and statements from teachers, friends or family may all be useful in shedding light on their state of mind at the relevant time.

Joinder

As soon as it becomes clear the issue of habitual residence has arisen in relation to an adolescent, early consideration must be given to addressing the issue with the court and an application made.

The Supreme Court made clear that a solicitor could act as a guardian. However, careful consideration needs to be given to the advantages of having a social-worker guardian provide a report to the court. A lawyer guardian will not be able to provide such helpful evidence on objections or grave risk as a social worker will. In some cases it may well be that a Cafcass report is obtained first and the children then seek their own representation with a solicitor. The advantages of the solicitor guardian are that the children are likely to be able to have more contact and be more actively involved.

Consideration will also need to be given to what role the children might play in the proceedings. Will they file a statement in their own name? Will they attend court? Is there a possibility of them giving evidence even?

Are there still any grey areas for which practitioners will need to watch out? If so, how can they avoid any possible pitfalls?

Habitual residence

The law on habitual residence has been completely rewritten in 2013. The English courts have abandoned the test in Shah v Barnet London Borough Council [1983] 1 All ER 226 which has dominated for 30-odd years. All of the legal glosses which accompanied it have been stripped away. Children can have a habitual residence different from their parents. One parent can unilaterally change the habitual residence of their children but the decision of an adult to leave and end his or her own habitual residence will not necessarily terminate that of the children who are taken. Parents or other carers without parental responsibility or even for local authorities may have a window in which they can issue proceedings following the removal of children by a parent who is the sole holder of parental responsibility because the children may remain habitually resident notwithstanding their removal.

In relation to the relevance of the state of mind of children, the grey area is what is an adolescent or who is to be treated as an adolescent? It may be that Cafcass will have to be asked to address this question in respect of children over about 12.

For younger children the majority in the Supreme Court has not said their state of mind is relevant. The minority says it is and the issue is probably still capable of further argument. Where there is an older sibling, the habitual residence of the sibling group will become a thorny issue. An adult sibling who is not the subject of the proceedings may be relevant.

It will be important to keep in mind the alternatives for habitual residence and not to focus solely on whether habitual residence is established in the particular country in issue. There may be a need for a comparative exercise of whether the children were more integrated in one country than another or indeed whether they were insufficiently integrated in either. Children can have no habitual residence but cannot be habitually resident in two countries at the same time.

Joinder

The test is much clearer now, although its application will still be difficult. It will be essential to consider the application of FPR 2010, PD 16A and the interplay with the overall 'best interests' test and the impact of joinder on the welfare of the children. It will be important not to let a paternalistic or protective approach to the children create an obstacle to representation in appropriate cases.

The hardest part will probably be deciding who should represent the children. Should it be a Cafcass guardian with the Cafcass High Court team or should the children obtain their own solicitor?

How does this case fit in with other developments in this area? Predictions for future developments?

This case completes the trio of cases the Supreme Court considered in 2013 in which habitual residence was the central issue. The three taken together have completely transformed English law on habitual residence and have consigned several House of Lords decisions on the subject to legal history.

The Supreme Court has followed the European Court of Justice's lead on habitual residence and has stripped away many legal overlays which had beset the issue over the last 30-odd years. Our approach should now be consistent with that across Europe and it is likely that this decision will have some impact on the approach to habitual residence in other common-law jurisdictions.

The stripping away of these overlays has returned habitual residence to what it was supposed to be--a purely factual analysis.

The decision allows the issue of habitual residence to resume its proper place in determining jurisdiction. Jurisdiction can be retained in a country despite the loss of habitual residence but this will be because of the operation of the Brussels II Regulation (EC) 2201/2003, art 10 or the Hague Convention 1996, art 7 or because proceedings had commenced prior to removal. Habitual residence as a tool for retaining jurisdiction on the basis of the legal fiction that habitual residence could not change without the consent of all holders of parental responsibility has now gone for good.

The refocusing on the children and the continuing development of their role, both in terms of the acceptance of the relevance of their state of mind and the need for representation, are further advances in their autonomy in proceedings concerning them.

It seems likely that this decision is not the end of developments. The state of mind of younger children is likely to be fought over again and the need for automatic representation of children in summary proceedings is surely likely to continue to be debated.

For more family law News Analysis see LexisPSL Family.

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