Relevance of a Child’s State of Mind to her Habitual Residence

by Sandra Meakins on February 13, 2014
Sandra Meakins

Sandra Meakins

The state of mind of an adolescent child when she was living in a country can, according to a recent ruling by the Court of Appeal, be taken into account when determining whether she had achieved a sufficient degree of integration into a social and family environment so as to be habitually resident in that country.

The case arose in a question of custody of a 12 year old girl and her brothers. The children were born in England and lived here until July 2012 when their parents’ relationship broke down. They then moved to Spain with the mother. In December 2012 they visited England for a holiday with the father but he failed to return them to Spain, as agreed, in January 2013.

The Courts initially held that all four children were habitually resident in Spain by January 2013 but the Appeal Court ruled that the judge in the original case had failed to give sufficient weight either to the robustness of the adolescent girl’s objections to living in Spain or to the fact that until July 2012 she had always lived in England and that, whilst he was right to order the return of the three boys to Spain, he should have declined to order the return of the girl.

The court accepted that it would be normal for the children in this case to take on the habitual residence of their mother. However, the principal question raised by the appeal was whether the court could take into account the adolescent child’s own state of mind during her period of residence there; in particular in relation to the nature and quality of that residence.  In this case, the court found that the maturity of the child was such that her state of mind and reported experience and lack of integration into her new environment should be taken into account.

Sandra Meakins, a Partner specialising in Family Law at Kidd Rapinet’s Farnham office, comments “Custody of children is always a delicate and highly charged matter.  However, the Courts are designed to take as much information as possible into consideration so that the best possible decisions can be made”.

If you would like assistance in a family related matter, call the contact for your local Kidd Rapinet office for further information:

  • Aylesbury: Mark Studdart (01296 432541)
  • Farnham: Sandra Meakins (01252 713242)
  • High Wycombe: Catherine Banks (01494 535321)
  • London: Richard Tymkiw (020 7024 8065)
  • Maidenhead: Kathryn Coyle (01628 621301)
  • Slough: Nathalie Wespieser (01753 532541)