Supreme Court upholds Inner House ruling on French-born children’s ‘habitual residence’ in Scotland

A judge in the Outer House concluded that the children were still habitually resident in France, based on the fact that the move to Scotland had not been intended by both parents to be permanent.

However, the Inner House reversed the Lord Ordinary’s decision on the basis that shared parental intention to move permanently to Scotland was not an essential element in any alteration of the children’s habitual residence, and concluded that the children were habitually resident in Scotland at the material time.

The father appealed to the Supreme Court on the basis that the Outer House had been correct and that the Inner House had in any event erred in its approach, but the mother argued that there had in any event been no wrongful retention.

Dismissing the appeal, Lord Reed – with whom the other justices agreed – considered that for the purposes of habitual residence, the stability of residence, rather than its degree of permanence, was important.

Giving the judgement of the court, Lord Reed said: “There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.”

As the court had previously held in a series of cases, habitual residence is a question of fact “which requires an evaluation of all relevant circumstances”.

Lord Reed continued: “It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.”

In the present case, the court held that the children were habitually resident in Scotland within the meaning of the Convention.

The court observed that the parental intentions in relation to residence in the country in question were a relevant factor, but “not the only relevant factor”.

“The absence of a joint parental intention to live permanently in the country in question is by no means decisive. Nor, contrary to counsel’s submission, is an intention to live in a country for a limited period inconsistent with becoming habitually resident there… the important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent,” the justice said.

Lord Reed explained: “In other words, following the children’s move with their mother to Scotland, that was where they lived, albeit for what was intended to be a period of 12 months. Their life there had the necessary quality of stability. For the time being, their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on, the more deeply integrated they had become into their environment in Scotland.”

The question of whether there had been any wrongful retention of the children in Scotland did not arise given the court’s conclusion.