The proceedings concerned four children born in England to an English father and a Spanish mother. The children lived with their parents, who were unmarried, in England until July 2012, when the parents’ relationship broke down. As a matter of English law, the father had parental responsibility in respect of the two younger children only. At the time of the appeal the children were aged 13, 11, 9 and 5.
On 24 July, the mother took the children to live in Spain. They returned to England on 23 December 2012 to spend a two-week Christmas vacation with the father. The children did not return to Spain. On 21 January 2013, the mother issued return proceedings under the Hague Convention.
On 12 April, the father’s application that the eldest child be made a second respondent and be represented by a children’s guardian was dismissed. On 23 May, the Family Division of the High Court ordered that all four children be forthwith returned to Spain: LCG v RL [2013] EWHC 1383 (Fam.). The father appealed the return order. The three eldest children were subsequently given permission to appeal against the trial judge’s failure to make them parties to the proceedings.
On 15 August, the Court of Appeal dismissed the appeals of the children against the decision not to make them parties to the proceedings. It rejected the father’s challenge that the trial judge had been wrong to hold that the children had been habitually resident in Spain on 5 January 2013 and that the trial judge had been wrong to characterise the wishes of the middle children not to return to Spain as only preferences rather than as objections.
But the Court of Appeal allowed one element of the father’s appeal, that the trial judge had erred in not exercising his discretion to decline to order the eldest child to Spain having found that she objected and had attained the requisite age and degree of maturity: Re LC (Children) (International Abduction: Child’s Objections to Return) [2013] EWCA Civ 1058 [INCADAT Reference: HC/E/UKe 1253].
The Court of Appeal then remitted the case to the High Court to inquire whether there was a grave risk that the return of the three youngest children to Spain would place them in an intolerable situation in that, for the first time in their lives, they would be separated from the eldest child. Father and eldest child were subsequently given permission to appeal to the Supreme Court on 17 October 2013.
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