The Supreme Court recently ruled that children should have a say in whether they wish to accompany a parent who moves abroad after a separation.
The 5 Justices unanimously agreed that a 13 year old girl should be considered to be a party in the dispute and that her assertions were relevant to any final decision about where she might live. Lady Hale (the UK’s most senior female Judge) stated that the child’s perception was as important as that of her parents.
The facts of the case are that the father lived in the UK and the mother had recently moved to Spain with the teenage girl and her 3 younger brothers. The mother and children had lived in Spain for 6 months when they returned to stay with their father for Christmas. The father did not return the children following their stay at Christmas and so the mother took legal action to have them returned. All four children were born in the UK and were British citizens.
The High Court Judge in first instance found that all four children should be returned. The Judge said “any child wrongfully removed” or retained outside their “place of habitual residence” had to be “promptly returned”. The test of habitual residence was whether there was a “degree of integration” in a social or family environment. The Judge had found all four children to be “habitually resident” in Spain and concluded they had been wrongfully retained by their father. The teenage girl objected to being returned, but was returned nonetheless.
The father then appealed against this decision, which lead to Lady Hales’ above comments. Lady Hale went on to say the “relevant reality” was that of the child, not the parents. She added: “This approach accords with our increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents’ decisions.”
However I am dubious as to whether this case will have a huge impact upon child abduction cases because in reality there are very few disputes about habitual residence. Most applications concern children who have been removed from the country where they have spent all or most of their lives by a parent who is returning to a country which she regards as home but they most definitely do not. Cases where children are retained in a country where they were born, raised and have always lived are very rare.
Faye Remnant is part of our Family Law team based in Loughborough; our Solicitors in Loughborough are experts in their fields and dedicated to quality client care. If you would like to find out more about our solicitors in Loughborough please contact us.Talk to our legal team
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