Summary
The proceedings were in respect of 4 children. On 21st January 2013, the mother made an application for a summary return of all four children to Spain.
The parties met in England in the mid-90s. The mother was Spanish; the father was English.
The family lived in England till July 2012 when they separated, and the mother and the children went to Spain.
In December 2012, the children came back to England and refused to return to Spain, hiding their passports.
On 23rd May 2013, Mr Justice Cobb held that the children were habitually residing in Spain, and granted the mother’s application, refusing for the eldest child (12-year old) to be joined as a party to the proceedings.
On the 15th August 2013, the Court of Appeal dismissed the father’s appeal against the judge’s finding that the children were habitually resident in Spain. However, it reversed the decision to return the eldest child (12-year old) to Spain, and remitted the case to the High Court.
An appeal on the issue of habitual residence was made before the UK Supreme Court. On 15th January 2014, the case was remitted to the High Court with a view to deciding on the issue of habitual residence. Baroness Hale held:
“86 It is very tempting to conclude from all this material that the children had not become integrated in a social and family environment during the five short months they were in Spain with their mother or (to use the term “enracinement” used by Professor Perez-Vera in para 109 of her explanatory report on the Hague Convention when commenting on article 12) taken root there. But I have to accept that the question of their habitual residence was not approached in this way by any of the parties to the hearing before Cobb J. This is scarcely surprising, as this is the first case in which the question of principle has been squarely raised. There may well be other relevant material that they would wish to put before the court. In the interests of justice, they should all be given that opportunity.
Policy
87 It would indeed be a matter of concern if the swift return of children to their home countries could be frustrated by disputes about their habitual residence prompted by the children’s expressed wishes and feelings. Nor should children interviewed in Hague cases routinely be asked questions about their habitual residence. But in reality, as Lord Wilson JSC explains, 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 such as this, where children go to live with one parent in a country where they have never lived before and return after a few months to the country where they had always lived, are very rare. In cases concerning peripatetic families, who move from one country to another, the position may be unclear. If so, the perception of the children is at least as important as that of the adults in arriving at a correct conclusion as to the stability and degree of their integration. The relevant reality is that of the child, not the parents. 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.
Conclusion
88 The case will therefore be remitted to the High Court to decide whether any or all of the four children were habitually resident in Spain on 5 January 2013. If it turns out that any or all of the three boys were, it will also have to be decided whether to return them to Spain when their older sister, or any of their brothers, is not to return will place them in an intolerable situation.” UKSC [86-88]