AR v RN [2015] UKSC 35



Temporary moves are commonplace in international families: A parent may accompany children to another country during term time whilst they attend school, or for long term medical treatment, or as in the case of AR -v- RN [2015] UKSC 35, to be near extended family during maternity leave. But what happens to habitual residence during those times, where both parties have agreed to live separately for a while? In the case of AR -v- RN, the Supreme Court reviewed the recent authorities on habitual residence, concluding that on the facts of that case, the new residence developed the quality of stability necessary for habitual residence to have changed.

The application concerned two children, both of whom had been born in France. The applicant mother was of joint British and Canadian citizenship. The respondent father was French and the family had always lived in France. In 2013 the parents agreed that shortly following the birth of the family’s second child, the mother and both children would go to live in Scotland, where the maternal grandparents lived, for 12 months.

There was a dispute about what was to happen after 12 months: The mother said that there was an agreement that the family would not return to France, (but she said the family were not sure whether they would remain in Scotland) whereas the father said that they had agreed to return to France.

In November 2013 the mother discovered infidelity on the part of the father and an application was made to the Scottish court that month for a residence order and an interdiction against the father removing the children from Scotland.

Since 2013 and the case of A -v- A [2013] UKSC 60 the focus of decisions about habitual residence has been firmly on the facts. A -v- A called for the abandonment of the ‘voluntarily and with settled intention’ test in Shah and cautioned against the inclination of the judiciary to put a legal gloss on what should be a factual analysis. In that case Hale LJ emphasised the need to focus on ‘stability’ and social integration, with particular regard to the reality of where the child’s primary carer is living in cases where that child is an infant.

This was followed by In Re L (A Child: Custody: Habitual Residence) [2013] UKSC 75 concerning a dispute between US and English courts and then in Re LC (Children) [2014] UKSC 1 which considered the impact of the intentions of adolescent children on the analysis of habitual residence. In each of those cases in the Supreme Court, the emphasis was on an analysis of the facts.

This line of authority was developed further in the case of H -v- B (Wardship: Jurisdiction) [2014] EWCA Civ 1101, which expressly disapproved any perceived ‘rule’ that habitual residence could not be changed unilaterally. In that case two children had moved to live with their mother in Bangladesh, against the wishes of their father. He made an application for their return 5 years later. By that stage the children lived in Bangladesh and their lives there were stable. There was no rule that the parents had to share the intention to change the children’s residence and they remained with their mother.

In AR -v- NR the Supreme Court held that ‘stability’ of residence rather than ‘permanence’ was the important factor, following the cases cited above and the European cases which they considered. The intentions of the parents as to the permanence or otherwise of the move were factors but were not determinative of the decision. In this case the children had moved to Scotland and were integrated into life there. That was their home for the time being, that was where their social life and much of their family life was.

The court heard submissions in respect of whether the mother’s actions amounted to a ‘wrongful retention’ of the children in Scotland and whether the father had consented to their retention within the meaning of Article 13 of the Hague Convention. The Supreme Court held that ultimately these questions did not fall to be determined, in light of the finding that the children were as a matter of fact habitually resident in Scotland.

This case will have implications for all those advising families who intend to live in separate locations for short (ish) periods of time. If the relationship ends during that period habitual residence may well already have shifted, which will have an effect on jurisdiction in the ensuing family proceedings.

Laura Briggs

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