Uk Court Declines To Follow Terms Of French-style Prenuptial Agreement

Supreme Court dismisses appeal: quality not quantity counts when determining habitual residence

England and FranceThe Supreme Court was asked in AR v RN (Scotland) [2015] UKSC 35 to rule on whether two girls should return to France, where they had been brought up, to live with their father or stay in Scotland with their mother after the relationship between their parents broke down.

The appeal centred on how to apply Hague Convention on the Civil Aspects of International Child Abduction. Article 3 of the Convention prohibits the removal or retention of a child lawfully in custody of a person under the law of the country in which the child immediately before removal or retention was habitually resident.

The two young girls were born and brought up in France. They were brought to Scotland by their mother in 2013, with the consent of the father. Mother and daughters were to stay in Scotland for a year. But following the infidelity of the father the relationship ended in November 2013. The mother applied for a residence order for the children and an interdict (the Scottish equivalent of an injunction in English law) against the father prohibiting him from removing the children from Scotland.

The father’s view was the proceedings amounted to a wrongful retention under the Convention because the children were habitually resident in France immediately before proceedings commenced.

The judge at first instance ruled that the daughters were still habitually resident in France on November 2013 because the move to Scotland had not been intended to be permanent. The Inner House of the Court of Session reversed that decision on the ground that shared intention of the parents to permanently move to Scotland was not an important factor in any change of the children’s habitual residence. The judges ruled, therefore, that the children were habitually resident in Scotland on 20 November 2013.

The father appealed to the UK Supreme Court.

The Supreme Court dismissed the appeal, ruling that in determining habitual residence it was the stability of residence rather than the degree of permanence that was important. Their Lordships’ ruled there was no requirement for a child to have been resident of the state in question for a particular period of time or that one or both parents intended to reside there permanently. The Court stressed that habitual residence is a question of fact, taking into consideration all relevant circumstances.

The Judges, Lady Hale, Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes, ruled that in this case both girls were habitually resident in Scotland. The issue of joint parental intention to reside permanently in Scotland was not the decisive factor. The mother’s original intention to live in Scotland for a limited time was not inconsistent with the issue of habitual residency.

The Judges decided that the most important question to be considered was whether residency had stability, not whether it was necessarily permanent. In this case the girls’ move to Scotland had the necessary ingredient of stability. Their social, educational life and family life was now in Scotland and they had become integrated with Scottish life.

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