According to a ruling by the supreme court, the children of parents who separate and go abroad should be allowed a say in where they want to live.
In a recent case, five justices decided that a child involved in a dispute between her British father and Spanish mother should be considered a party to the domestic dispute.
The 13 year old girl’s “assertions about her state of mind” were considered to be relevant to where she might live and her views on the subject as important as those of her parents.
The teenager is one of 4 children with three brothers aged 11, nine and five. The father is 47 and lives in the UK, and the mother is 46 and lives in Spain. The couple had been in dispute over where their children should live for about a year. They met in England, lived in the UK throughout their relationship, and all four children were born in the UK.
Following the breakdown of the relationship, the mother and all four children moved to Spain in July 2012. The children returned to England to spend Christmas that year with their father, but did not return to Spain as scheduled in January last year.
The mother then started legal action and asked a judge to order the children’s return to Spain under international law. The girl objected to being returned to Spain.
Justices said international law stipulated that children “wrongfully removed” or retained outside their “place of habitual residence” had to be “promptly returned”. The test of habitual residence was whether there was a “degree of integration” in a social or family environment.
They said a high court judge had found all four children to be “habitually resident” in Spain and concluded they had been wrongfully retained by their father.
The high court judge acknowledged the teenage girl’s objection to returning to Spain but said she should be returned nonetheless with her brothers. The father appealed against that decision.
In the supreme court ruling, it was explained: “It would indeed be a matter of concern if the swift return of children to their home countries could be frustrated by disputes about their habitual residence prompted by the children’s expressed wishes and feelings,”.
The supreme court said a judge in the family division of the high court should re-examine the case in the light of their ruling and what should happen to all four children.
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