Child's state of mind affects residence

A child’s assertions about her state of mind is relevant in deciding habitual residence, the Supreme Court has unanimously ruled.

In the matter of LC (Children) [2014] UKSC 1,  [2014] All ER (D) 62 (Jan) concerned a Spanish mother’s proceedings against a British father for the return of their four children from England to Spain. The parents’ relationship ended in early 2012, and the mother took the children to Spain. 

The children came back to England for a holiday in December, and the two eldest boys hid the family’s passport so they missed their flight back to Spain. The father did not return them, stating the children wanted to remain in the UK. He applied for the eldest, T, who was 13 years old, to be joined as a party to legal proceedings but the High Court refused.

In a landmark decision, the Supreme Court held that an adolescent child’s state of mind is relevant in deciding whether he or she has gained or lost habitual residence, and that a child may have a different habitual residence from that of the parent with whom they are living.

The court also unanimously held that the eldest child should have been granted party status to proceedings.

Delivering the lead judgment, Lord Wilson said: “Where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will no doubt be highly unusual for that child not to acquire habitual residence there too... references have been made to the ‘wishes’ ‘views’ ‘intentions’ and ‘decisions’ of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent's habitual residence is her state of mind during the period of her residence with that parent.”

Melanie Carew, head of Cafcass Legal says: “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.”

Kim Beatson, head of family law at Anthony Gold solicitors (pictured), says: “It cannot be suggested that this case will lead to a radically different approach to Hague cases or even that children will routinely be joined in these cases.

“Lord Wilson pointed out that there are relatively few disputes about habitual residence and, in most cases, the applications concern children who have clearly been removed from countries where they are habitually resident.

“However, the case does make clear that a mature child’s ‘state of mind’ is relevant to the determination of habitual residence and that a child may have a different habitual residence to that of a parent with whom he or she is living.”