Spotlight on... Pictured: Malcolm MacDonald
International Family Law - Malcolm MacDonald, Barrister In a recent address to the Family Law Bar Association at Cumberland Lodge in May 2015, the President of the Family Division of England and Wales, Sir James Munby, identified International Family Law as one of the areas of family law of particular importance during his Presidency with a view to broadening understanding of international children law beyond specialist solicitors and barristers. In this article I have identified some recent cases that highlight issues in international children law cases that are not only topical, but are also examples of some important issues that may confront practitioners when dealing with child abduction cases and other international children law cases.
Habitual Residence: AR v RN (Scotland) [2015] UKSC 35 The case of AR v RN involved child abduction proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention). In this case the mother had moved to Scotland with two children (aged 3 and 1) from France with the father’s consent. The father alleged that there was an agreement that the mother should live in Scotland for 12 months during her maternity leave and then return to France. The mother’s position was that the family was to move permanently from France with the father joining the family once the family home had been sold and arrangements had been made for the father’s business to be managed. The parents were then to decide where they were going to settle in the long term. The family home was sold in August 2013. The father visited the family once a month in Scotland and the mother and children had holidayed twice for short periods with the father in France. The mother and children moved into a rental property adjacent to the maternal grandparents’ home in Scotland. The oldest child attended nursery. In November 2013 the mother discovered that the father was having an extra marital affair in France. The mother, ended the relationship with the father and issued proceedings in Scotland on 20 November 2013 for a residence order and an interdict (prohibitive order) against the father removing the children from Scotland. The father remained in France and sought the return of the children on the grounds that the mother’s initiation of proceedings in Scotland was a ‘wrongful retention’ under the 1980 Hague Convention. The first question for the Scottish Court at first instance to answer was whether the children were ‘habitually resident’ in France immediately before 20 November 2013. The court at first instance concluded that the children were habitually residence in France, primarily because nothing in the communications between the mother and father indicated a joint intention to uproot themselves and relocate permanently (my emphasis) to Scotland. This was overturned on appeal in Scotland on the grounds that the court at first instance had erred in law in treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children’s habitual residence from France to Scotland. The Appeal Court found that the children were habitually resident in Scotland at the time of the mother’s application and identified the ‘real issue’ as whether there needed to be a longer time than four months for the children to change habitual residence. The Appeal Court found that the four months the children had spent in Scotland was sufficient when the whole circumstances of the case were taken into consideration. The father then appealed to the Supreme Court to restore the first instance decision.
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The Report
In cases of child abduction involving two states in the EU (in this case France and the UK) the 1980 Hague Convention is supplemented by Brussels IIR (Article’s 10 and 11) and Brussels IIR takes precedence over the 1980 Hague Convention. This means that the concept of ‘habitual residence’ as interpreted under Brussels IIR determines how ‘habitual residence’ is interpreted under the 1980 Hague Convention in the UK. The Supreme Court in coming to its decision referred to guidance on how ‘habitual residence’ is to be determined for the purposes of applying the 1980 Hague Convention and Brussels IIR in its previous decisions in the cases of A v A [2013] UKSC 60; and In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1; [2014] AC 1038. The guidance was developed with reference to case law from the Court of Justice of the European Union in Proceedings brought by A (Case C- 523/07) [2010] Fam 42, Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, and C v M (Case C-376/14PPU) [2015] Fam 116. The Supreme Court found that, consistent with the case law set out above, a child’s ‘habitual residence’ corresponds to the place which reflects some degree of integration by the child in a social and family environment. Factors that are to be taken into consideration include • the duration, regularity, conditions and reasons for the stay and the family's move to that state, • the child's nationality, • the place and conditions of attendance at school, • linguistic knowledge and the family and social relationships of the child If a child is an infant then there will be a need to focus on the primary carer rather than the child. “Habitual residence’ is distinguished from ‘temporary’ residence by having a certain duration that reflects an adequate degree of permanence. The Supreme Court emphasised that it is the ‘stability’ of the residence that is important, not whether it is of ‘permanent’ character. There is no requirement that the child should have been resident in the country in question for a particular period of time, nor is it necessary that there should be an intention on the part of one or both parents to reside there permanently or indefinitely. ‘Habitual residence’ is, therefore, a question of fact requiring an evaluation of all the relevant circumstances. There are no legal ‘rules’ that apply, for example, that a parent cannot unilaterally change the habitual residence of a child. The Supreme Court found that the Scottish court at first instance was in error because it had focused on the intention of the parties and failed to consider the ‘abundant’ evidence relating to the stability of the mother’s and the children’s lives in Scotland, and their integration into their social and family environment there. The Supreme Court upheld the Scottish Appeal’s Court decision that the children were habitually resident in
Scotland and had not been wrongfully retained by the mother in Scotland. For the time being, their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on, the more deeply integrated they had become into their environment in Scotland. Other issues raised on appeal, and in the court below, by the mother that her application for a residence order in Scotland was not a ‘wrongful retention’ per se under the 1980 Hague Convention and whether the father had in fact consented to the children’s retention in Scotland did not need to be determined by the court. The case has wider relevance than child abduction cases under the 1980 Hague Convention because the ‘habitual residence’ of the child is the primary source of jurisdiction under Article 8 of Brussels IIR for issues of parental responsibility, not only between EU states, but also between the UK and non EU member states. [Re A (Jurisdiction: Return of Child) [2013] UKSC 60]]
A Child’s Objections to Return - Defences under Article 13 of the Hague Convention: Re M[2015] EWCA Civ 26 and Re U-B [2015] EWCA Civ 60 and and Re K (Lithuania)[2015] EWCA Civ 720 Article 13 of the 1980 Hague Convention sets out the circumstances where a requested state is not bound to order the return of a ‘wrongfully removed’ or ‘retained’ child under Article 12. In Re M, Black LJ conducted a comprehensive review of the case law to determine what was the proper approach to deciding whether a child’s objections to their return to their country of habitual residence under Article 13 should prevent a return order being made. The facts of the case were that the mother and children (D ( aged 17), J ( aged 13), T( aged 11) and I aged 6) came to England from Ireland on 12 March 2014 in circumstances that were conceded by the mother amounted to the children being wrongfully removed from Ireland. The mother alleged that she had fled Ireland due to serious domestic violence perpetrated by the father. CAFCASS interviewed the children who expressed fear about returning to Ireland and also of their father, describing traumatic experiences in the home, witnessing and being subject to domestic violence from the father. The father disputed the allegations. He issued an application for a return order under the 1980 Hague Convention in June 2014. In proceedings at first instance in the High Court an order was made for the children to return to Ireland. Black LJ found that there should be a two stage process to considering a child’s objections to return under Article 13. The first stage is a ‘gateway’ stage which is confined to a straightforward and robust examination of whether the simple terms of the Convention are satisfied in that the child ‘objects’ to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.