Child’s opinion relevant in international custody disputes

An important decision by the Supreme Court has suggested that in future courts will take a more child-centric approach to deciding where children should live in cases of international custody disputes.

The case involved a Spanish mother and English father, who had four children together – a girl aged 13, and three sons aged 11, 9 and 5.

The children had all been born in the UK and lived there all their lives until the couple split up in 2012 and the mother took the children back with her to Spain.

The children came back to the UK on a scheduled visit to see their father over Christmas 2012 and were due to return to their mother in early January 2013, but failed to do so. The children, and in particular the eldest child, expressed objections to returning to Spain.

The mother took legal action under the Hague Convention on the Civil Aspects of International Child Abduction 1980 to have the children returned.

The Convention says that if a child has been wrongfully removed from, or retained outside, his or her place of habitual residence they should promptly be returned to it. The test for determining whether a child is habitually resident in a place is now whether there is some degree of integration by him or her in a social and family environment there.

The High Court decided that the children were habitually resident in Spain and therefore should be returned.

The father’s appeal eventually reached the Supreme Court, which unanimously found that the eldest child’s assertions about her state of mind during her residence in Spain in 2012 were relevant to a determination whether her residence there was habitual.

It therefore set aside the conclusion that she was habitually resident in Spain and sent the issue back to the High Court.

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