The child is father of the man

Tuesday, 01 April 2014
Richard Frimston considers how habitual residence will be determined where elderly adults lack capacity.

"So be it when I shall grow old, or let me die! The Child is father of the Man; I could wish my days to be bound each to each by natural piety"
William Wordsworth

Sans teeth, sans everything, as we reach the end of our lives, the human condition often brings us to second childishness, before oblivion.

In the February issue of the STEP Journal, I discussed the meaning of habitual residence (HR), which has established itself as the EU connecting factor of choice.

Since I wrote that article, we have now had the judgment of Sir James Munby P In the matter of PO, JO v GO and others [2013] EWHC 3932 (COP) and of the UK Supreme Court In the matter of LC (Children) [2014] UKSC 1, which also refers to the decisions of the same court In the matter of A (Children) (AP) [2013] UKSC 60 and In re L (A Child) (Habitual Residence) [2013] UKSC 75. For a UK lawyer, these judgments are particularly important in an EU context and deserve careful study.

In cases involving children, it is now clear from para 54 of the [2013] UKSC 60 decision that:

  • The UK will regard HR as a question of fact, and not a legal concept, such as domicile. There are to be no legal rules such as that a child automatically takes the HR of its parent.
  • HR must be interpreted consistently with both the Hague and EU Conventions.
  • Adopting the following test, the Court of Justice of the European Union (CJEU) in the case of Mercredi v Chaffe C-497/10 decided that the concept of HR for the purposes of [Brussels II bis] must be interpreted as meaning ‘such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment’. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
  • It is now unlikely the test would produce different results in the UK under domestic legislation or the Hague Convention.
  • The CJEU test has replaced previous domestic definitions.

In the matter of LC seems to have pushed these conclusions further. Lady Hale at para 57 onwards makes it clear that, while HR is not a matter of intention, state of mind is relevant: ‘The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once a child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account... But it is not a question of the parents determining the habitual residence of their children. It is a question of the impact of the parental decisions... upon the factual question of where the children habitually reside.’

It should not be forgotten that Brussels II bis does not relate solely to parents’ obligations to maintain their children. Obligations on children to maintain their elderly parents, such as exist in France, are, to the surprise of many, also recognised and enforceable between EU member states under Brussels II bis.

When will the HR of an adult who lacks capacity be determined by the environment in which they live and when will they retain a state of mind that will influence the place of HR?

In the case of the EU Succession Regulation, HR requires an even closer nexus than under other EU Regulations. Recital 23 explains: ‘The habitual residence thus determined should reveal a close and stable connection with the State concerned, taking into account the specific aims of this Regulation.’ Brussels II bis decisions may therefore be of limited assistance.

However, the Hague Convention XXXV on the International Protection of Adults was borne out of the Hague Convention on Parental Responsibility and Protection of Children. The meaning of HR in the two conventions may therefore be regarded as complementary. At what stage does the state of mind of an adult resemble that of a child, or alternatively that of a very young child or a baby? When will the HR of such an adult be determined by the environment in which they live and when will they retain a state of mind that will influence the place of HR? These are clearly matters of fact.

In the matter of PO relates to ‘granny-napping’ south and north of the border in Britain, and the jurisdiction of the Scottish and ‘South British’ courts under their respective laws implementing the Hague Convention XXXV. The judgment of Sir James Munby P makes reference to the doctrine of necessity in moving adults who may have lost capacity, but it is to be subject to appeal. It will be fascinating to see how the Court of Appeal decides the issue in the light of these recent Supreme Court decisions.

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Richard Frimston

Richard Frimston TEP is a Partner and Head of the Private Client team at Russell-Cooke LLP, and Chair of the STEP EU Committee.

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