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On appeal from: [2013] EWCA Civ 1058

This appeal concerned the Hague Convention on the Civil Aspects of International Child Abduction 1980, and the Child Abduction and Custody Act 1985, s 1(2). The mother of four children, who is a Spanish national living in Spain, brought proceedings against their father, a British national living in the UK, for the summary return of the children after they were not returned following a Christmas visit to the UK. Her application was made under the Convention, which stipulates that (subject to narrow exemptions) a child wrongfully removed from/retained outside of their place of habitual residence shall promptly be returned to it. The eldest child, an adolescent, was not joined as a party to the proceedings. The Court of Appeal held that the children’s place of habitual residence was in Spain, and that the eldest child should not be returned to Spain as her objections were robust and determined, and concluded that the appropriate course was to remit the question of whether it would be intolerable to return the three younger children to Spain without their older sibling to the High Court.

The Supreme Court unanimously set aside the conclusion that the eldest child was habitually resident in Spain, and also the finding of habitual residence in respect of the three younger children, and remitted the issue to the High Court for entirely fresh consideration. The eldest child should have been granted party status.

The eldest child’s state of mind during her residence in Spain was relevant to a determination whether her residence there was habitual. Courts are required, in analysing the habitual residence of a child, to search for some integration in a social and family environment. This requirement provides some room for unusual cases in a situation where it would be highly unlikely for a child to not acquire habitual residence in a state when they go there lawfully with a parent who is a habitual resident of that state.

For judgment, please download: [2014] UKSC 1
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII