Re LC (Children)

Summary: We have for some time commented upon a stream of jurisprudence from the higher courts as to the proper approach to the determination of the habitual residence of children for the analogies that this jurisprudence sheds upon the approach that should be adopted to determining where adults are habitually resident for purposes of engaging the jurisdiction of the Court of Protection under Schedule 3 to the MCA 2005 (i.e. in relation to cases with a cross-border element). We have drawn attention, in particular, to the decision of the Supreme Court in A v A [2013] UKSC 60.

The decision in Re LC is perhaps even more pertinent. The facts are irrelevant, the central question being whether it was appropriate (for purposes of the 1980 Hague Child Abduction Convention) to take into account the state of mind of an adolescent child in determining whether she had acquired the necessary degree of integration into a social and family environment in Spain so as to become habitually resident in that country. The Supreme Court, by a majority, held (at paragraph 37):

"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. The same may be said of a situation in which, perhaps after living with a member of the wider family, a child goes to reside there with both parents. But in highly unusual cases there must be room for a different conclusion; and the requirement of some integration creates room for it perfectly. No different conclusion will be reached in the case of a young child. But, where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older child's residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may – possibly – have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, 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. In the Nilish Shah case, cited above, in which he propounded the test recently abandoned, Lord Scarman observed, at p 344, that proof of ordinary (or habitual) residence was 'ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind'. Nowadays some might not accept that evidence of state of mind was not susceptible of objective proof; but, insofar as Lord Scarman's observation might be taken to exclude the relevance of a person's state of mind to her habitual residence, I suggest that this court should consign it to legal history, along with the test which he propounded."

Lady Hale and Lord Sumption did not dissent from this proposition; rather, they went further to suggest that the perceptions of children of any age could be relevant.

In JO v GO & Ors [2013] EWHC 3932 (COP), a cross-border case concerning whether the habitual residence of an adult without capacity to decide as to her residence had changed from England to Scotland after she had been moved by family members across the border and then placed in a care home, Sir James Munby P took into account that the adult in question was settled in her care home, and, "seemingly, expressing her contentment at being there," as well as the fact that she was "not now expressing a desire to return either to her own home or to Worcestershire" (paragraph 23). He did not give specific reasons as to the basis upon which he considered that he was entitled to take these factors into account, but it is suggested that Re LC provides further endorsement of the position that it is both necessary and appropriate to consider the views of an adult without capacity when determining whether their habitual residence has changed. The weight to be attached to these views will depend very greatly upon the precise factual scenario under consideration, but that is a second order question to whether they are relevant in the first place. It is also suggested that the phrase 'state of mind' may also be of some utility when considering the position of adults for purposes of Schedule 3. Whilst it is tempting to use the phrase 'wishes and feelings,' this would give rise to a risk that the analysis would be conflated with a best interests analysis when the exercises required by Schedule 3 are distinct to those required by the balance of the MCA 2005 (see, in this regard, both JO and Re MN (Recognition and Enforcement of Foreign Protective Measures [2010] EWHC 1926 (COP)).