Warning: this blog (unusually) contains quite a lot of law; but it is quite interesting, we think. The reason for this focus is that in the last few months our highest court, the Supreme Court has got its teeth into some of the nitty gritty of international disputes concerning children. We thought it would be worth having a brief look at where the law is going in this area, as so many families in our Cambridge community (and beyond of course) have ties and connections with other countries.
Three recent cases have all been concerned with the legal concept of habitual residence in respect of children. This is fundamentally important because a child’s habitual, or usual, residence determines which court of which country has the power (known as ‘jurisdiction’) to hear a court case concerning that child. The test for determining whether a child is habitually resident in a country is not strictly defined, but broadly depends upon the degree of integration by him or her in a social and family environment there. It is not always the same as its parents’.
Ninety-one countries are signatories to an international agreement known as the Hague Convention which provides that, subject to narrow exceptions, a child wrongfully removed from, or retained outside, his or her place of habitual residence shall promptly be returned to it. Therefore for the English court to determine whether it must order the return of a child to another country, it must first know whether the child was and remains habitually resident in that other country, in which case the child must be returned, or whether they have become resident here, in which case there is more discretion for the court to find the appropriate solution for the child.
The three cases in which the Supreme Court has looked at this area recently concerned three very different scenarios.
The first case known as In the Matter of A (Children) was about a baby who was born in Pakistan to parents of Pakistani origin who were both resident in England. The parents and their three children lived in England but then the husband returned to Pakistan, and the mother subsequently took the children to visit him there. Whilst there, the mother was held prisoner by the husband, was raped by him, became pregnant, and eventually gave birth to their fourth child. Eventually she managed to escape (alone) and get back to England, and she started proceedings to get all four children returned from Pakistan where the husband was holding them. The older ones were ordered quickly to be returned as they had not lost their residence here, but the baby had never been to England, so there was a question about whether he could be habitually resident here and thus whether the court could make orders about him.
The court decided that the baby could not be habitually resident here as he had never been here, but they did order his return to England based on his British nationality – a creative solution using the wide, general, ‘inherent’ powers of the English family court.
In the second case, known as In the Matter of KL (A Child) the Supreme Court looked at a court order made overseas (Texas), and what happens when a parent brings a child to this country under the terms of the order, but that order is later overturned so the child ends up abroad unlawfully. The court decided that the important point to determine was where the child was habitually resident when the order was breached; as the child was resident in England when the mother refused to take him back to Texas when the order was overturned, the court found that he should not automatically be returned to Texas. However in this case, they went on to decide that as the child was essentially Texan, he should be returned there, again using the court’s inherent jurisdiction.
The most recent case, In the Matter of LC (Children); In the Matter of LC (Children) (No 2) concerned four children who had lived all their lives in England until they moved with their mother (who is Spanish) to Spain with their father’s agreement. Later, when they returned to England for a holiday with their father, he kept them here at the appointed time for their return, arguing that none of the children wanted to go back to Spain.
The question the Supreme Court looked at here was whether a court should consider a child’s state of mind to determine habitual residence when the child is temporarily residing with one or other of his/her parents. The eldest child (aged 13) in this case had made it abundantly clear that she did not want to return to Spain, and the court decided that her state of mind whilst she was in Spain was relevant to whether her residence there could be said to be habitual. In the end, they did not make a definitive decision about whether the children should be sent back, but decided that the trial judge should have another look at the case taking into account the states of mind (which they said was different from simple wishes or views) of the children whilst in Spain about their residence there. Did they feel they were sufficiently integrated there to be habitually resident, or could they be said to have retained habitual residence in England despite their relocation?
This area of law is changing. The Supreme Court is making it clear that the courts will exercise their inherent jurisdiction to make decisions in the best interests of children, and should also take account of the children’s state of mind when they are living temporarily in a specific country. It’s difficult to determine principles of law as such, but this is quite commonly the case when the courts deal with children’s arrangements because each case is very specific to its circumstances, and decisions must be made with the welfare of the children involved at the forefront of the court’s mind.
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