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AR v RN (Habitual Residence)

AR v RN (Habitual Residence)

Case [2015] UKSC 35 22 May 2015

Habitual Residence

Stability of Residence

Parental Intentions

Family Law

International Child Abduction

Type to search within this case.

Easter Term

[2015] UKSC 35

On appeal from: [2014] CSIH 95

JUDGMENT

AR (Appellant) v RN (Respondent) (Scotland)

before

Lady Hale, Deputy President

Lord Clarke
Lord Wilson
Lord Reed
Lord Hughes

JUDGMENT GIVEN ON

22 May 2015

Heard on 13 May 2015

Appellant Respondent

Kate Dowdalls QC James Turner QC

Alison Wild Ruth Innes

(Instructed by Family Law	(Instructed by Macnabs
Matters Scotland LLP)	LLP)

Intervener (Reunite International Child Abduction Centre)

Written submissions only

Teertha Gupta QC

Michael Gration
William Tyzack

(Instructed by Dawson

Cornwell)
Intervener ( Children and Families Across Borders)
Written submissions only

Deirdre Fottrell QC

Daisy Hughes

Eleri Jones

(Instructed by Freeman

Solicitors)
Intervener (International Academy of Matrimonial
Lawyers)

Written submissions only

Timothy Scott QC
(Instructed by SKO
Family)

LORD REED: (with whom Lady Hale, Lord Clarke, Lord Wilson and Lord
Hughes agree)

1. The issue in this case is whether the court should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arises under article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985.

The facts

2. The children were born in France in August 2010 and June 2013. Their father is a French citizen who has lived in France all his life. He has a small business in France. Their mother is a British and Canadian citizen, who was born in Canada of a Scottish mother. She works from home for a Canadian employer. She and the father have never been married.

Until July 2013 the family lived together in France, visiting the mother’s

parents in Scotland from time to time. During July 2013 the mother and the two

children came to live in Scotland. They did so with the agreement of the children’s father. According to the father’s affidavit, it had been agreed that the mother and the

children should live in Scotland during her 12 months’ maternity leave, returning

afterwards to France. According to the mother’s affidavit, it had been agreed that

the family would move permanently away from France, although not necessarily remaining in Scotland beyond the duration of her maternity leave. The father was to join the rest of the family after the family home in France had been sold, and arrangements had been made in relation to the management of his business, and they would then decide where to settle in the longer term. What is uncontroversial is that the mother and children were to live in Scotland for the period of about a year from July 2013 during which she was on maternity leave.

4. Following their arrival in Scotland, the mother and children lived initially with the maternal grandparents. In August 2013 the family home in France was sold, the sale being completed two months later. The elder child also started to attend the local nursery in Scotland in August 2013, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AR v RN (Habitual Residence)

Details

AGLC: AR v RN (Habitual Residence) [2015] UKSC 35
Case: [2015] UKSC 35
Decision Date

CaseChat Overview and Summary

AR v RN (Habitual Residence) is a case where the Supreme Court of the United Kingdom considered whether two young children, born in France and living in Scotland with their mother, had retained their habitual residence in France. The father sought to return the children to France under the Hague Convention on the Civil Aspects of International Child Abduction. The primary issue before the court was whether the children were habitually resident in France immediately before 20 November 2013, the date on which the mother initiated residence proceedings in Scotland. The court needed to determine if the children's stay in Scotland was of a sufficiently stable and integrated nature to constitute a change in their habitual residence from France to Scotland.

The Supreme Court found that the lower courts had erred in their approach to determining habitual residence. The Lord Ordinary had focused exclusively on whether there was a joint intention to permanently relocate to Scotland, ignoring other relevant factors such as the stability and integration of the children’s lives in Scotland. The Inner House, on the other hand, had rightly considered the necessary stability of residence but misconstrued the issue as one of duration rather than integration. The Supreme Court concluded that the children had indeed become habitually resident in Scotland due to the stability and integration of their lives there, despite the original intention for the stay to be temporary. As such, the children were not wrongfully retained in Scotland, and the appeal by the father was dismissed.

Orders