Should children’s views count in child abductions?

Child abductions seem to be appearing ever more frequently in the news headlines – and it appears there may be some development in the treatment of these cases, where the relationship between parents of different nationalities has broken down.

This new judgement is based on a Supreme Court case, LC (Children) (No2).  This particular case involved a mother (from Spain) and a father (from England), who had four children, aged 5, 9, 11 and 13.  The children, all born in England had lived here until the parents relationship broke down, whereby the mother relocated to Spain and took the children with here.

Christmas 2012 saw the children return to England to spend time with their father, but when they were due to return to Spain, the 13 year old refused to go and two of the other children hid their passports.  When the children did not return to Spain, their mother made an application under the Hague Convention on the Civil Aspects of Child Abduction 1980.  

The father argued as his defence, that;

1) the children were not habitually resident in Spain – and so their retention in England was not wrongful, and/or;

2) as the 13 year old child had refused to return to Spain, the court should exercise its discretion and keep her in the UK

This case is both different and significant as it determined that when someone is considering the issue surrounding habitual residence (which is relevant in this case), evidence is required on the state of mind of the children to decide whether or not they had integrated into both the social and family environment they have relocated to, in this case Spain.  

This shows a change in the law, as previously the assumption was that children were to adopt the habitual residence of the parent they live with and gives them more autonomy.

The Times Law wrote; 

“The court recognised that children with a sufficient level of understanding have valid views that should be taken into account when making certain decisions in their lives. An important extract appears at paragraph 87 of Lady Hale’s judgment: “This approach accords without 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.”

The decision could potentially have a significant impact in a world with increasing globalisation, where children have exposure to different countries and cultures. It must be correct that careful consideration needs to be given to children’s integration in those countries (as has been requested in LC) if the court is ever asked to determine where they consider home.

The Supreme Court has remitted to the High Court the issues of the children’s habitual residence and whether, if the eldest child does not return to Spain, the younger three children will be placed in an intolerable position by being separated from her. The High Court’s decision is awaited with interest as this, and the Supreme Court’s judgment in LC, will be important for future cases where the relationship between parents of different nationalities has broken down.”

So it would be interesting to get your thoughts, do you believe this is a good change and one that will make a difference?  Should children be allowed to provide information to support their application for whether or not they stay with one parent or another, if there is cross-countries?

rebecca x

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