LC (Children)

LC (Children)

The trial judge was not wrong to find the children habitually resident in Spain, nor to refuse to join the children as parties at first instance. However, insufficient weight was given to T's objections and her lifelong residence in England, and the elapsed time since retention. The order returning T to Spain was set aside. The question of whether the boys should be returned, given the potential intolerability of sibling separation, was remitted for urgent determination.

Parties
Subject Children: LC (Children); Applicant: Mother (M); Respondent/appellant: Father (F); Intervener/appellant: T (eldest child); Interveners/appellants: L and A (older boys)
Jurisdiction
England and Wales
Judgment Date
15 August 2013
Procedural Posture
Appeal (family/child Abduction) / Court of Appeal Judgment
Outcome
Appeal allowed in part
Legal Topics
Hague Convention 1980, Habitual Residence, Children's Objections, Party Status of Children, Article 13(b) Defence
Family Law International Child Abduction Hague Convention 1980 Habitual Residence Children's Objections Party Status of Children Article 13(b) Defence

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Parties

LC (Children)

Subject Children

Mother (M)

Applicant

Father (F)

Respondent/appellant

T (eldest child)

Intervener/appellant

L and A (older boys)

Interveners/appellants

Procedural Posture

Appeal (family/child Abduction) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the children were habitually resident in Spain at the relevant date
  2. 2 Whether the children (particularly T) should have been joined as parties at first instance
  3. 3 Whether the children's objections to return were properly considered

Ratio Decidendi

The trial judge was not wrong to find the children habitually resident in Spain, nor to refuse to join the children as parties at first instance. However, insufficient weight was given to T's objections and her lifelong residence in England, and the elapsed time since retention. The order returning T to Spain was set aside. The question of whether the boys should be returned, given the potential intolerability of sibling separation, was remitted for urgent determination.

Court Disposition

Appeal allowed in part

Orders

  • Order returning T (eldest child) to Spain set aside; T to remain in England.
  • Question of return of the boys (L and A) remitted to the Family Division for urgent determination.