A recent ruling by the Supreme Court has made the judgment that a child’s ‘state of mind’ is relevant when making assessments in cases where there is dispute over which country a child should live.
The judgement brings England in line with European courts, setting out that the ‘degree of integration’ expressed by a child will now be a consideration when deciding whether habitual residence has been acquired.
This case arose following the father opposing the mother’s request for the return of their four children to Spain pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980.
The children had lived all their lives in England, save for a period of five months when they lived in Spain. The High Court ordered their return. In the Court of Appeal, that decision was reversed in relation to the oldest child, T, but not in relation to the youngest three.
However, the Court of Appeal recognised that to return three children from a sibling group of four could create an intolerable situation for those children and so ordered the High Court to consider that issue.
Before that matter could be heard, the appeal of T and the father came before the Supreme Court. The main appeal was on the basis that the children had not acquired habitual residence in Spain, so in effect the Hague Convention could not apply. Thus the High Court had wrongly ordered their return.
A guardian from Cafcass, the children and family courts advisory and support services, represented three of the children in this case. Cafcass has welcomed the decision, calling it a more “child-centric” approach to international cases.
Melanie Carew, Head of Cafcass Legal said:
“The work of our guardians in such cases is to ascertain as far as possible the wishes and feelings of the child, and to represent the views of the child within the courtroom and advise on what is in their best interests. It is pleasing to see that more consideration is given to the mind-set of the child when making decisions on habitual residence – particularly in international cases.
“The determining of habitual residence is a complex legal concept but one that is becoming increasingly more relevant in the work of family courts as families move across borders. Evidencing a child’s state of mind may prove difficult, particularly in younger children, but the fact that its importance is being recognised through this judgement is a positive step forward in delivering a system that truly has the child’s wants and needs as its focus.”
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