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Posted on January 28th, 2014

Picture credit: Fran Orford

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Supreme Courts rules that children’s mindset must be considered in international custody battles

Posted on January 21st, 2014

As reported in Community Care on 15 January 2014 by Tristan Donovan

Cafcass hails judgement as a “positive step” towards creating a truly child-centred family court system

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UK courts must consider the mindset of the children in custody cases where there is a parental dispute about the country the children should live in, the Supreme Court has ruled.

The decision follows a case where the British father and Spanish mother of four children aged four to 13 disagreed on whether their children should live in England or Spain.

After the end of the parents’ relationship in early 2012, the children moved to Spain with their mother for five months but after a holiday in England that Christmas they did not return to Spain.

The High Court ordered the children to be returned to Spain pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The Court of Appeal then reversed the decision in relation to the eldest child, but in recognition that this could mean returning three of the four children to Spain ordered the High Court to consider that issue.

Before the case could be heard again at the High Court, the father and eldest child went to the Supreme Court arguing that the children had not acquired ‘habitual residence’ in Spain as they had only lived there for five months.

In its decision the Supreme Court said that the ‘degree of integration’ expressed by a child should be a consideration when UK courts assess whether habitual residence has been acquired.

The judgment brings English courts into line with European courts.

Lady Hale, deputy president of the Supreme Court, said: “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.”

Cafcass, which represented three of the children in the case, welcomed the decision.

“It is pleasing to see that more consideration is given to the mindset of the child when making decisions on habitual residence – particularly in international cases,” said Melanie Carew, head of Cafcass legal.

“The determining of habitual residence is a complex legal concept but one that is becoming increasingly relevant in the work of family courts as families move across borders.

“Evidencing a child’s state of mind may prove difficult, particularly in younger children, but the fact that its importance is being recognised through this judgment is a positive step forward in delivering a system that truly has the child’s wants and needs as its focus.”

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