Children whose parents separate and go abroad should be allowed to express a choice about whether they want to accompany them to another country, the supreme court has ruled.
In a case likely to have a significant impact on international care cases, five justices unanimously decided that a 13-year-old girl – caught in a tug-of-love between her British father and Spanish mother – should be considered to be a party to the domestic dispute.
The youngster's "assertions about her state of mind" were relevant to any final decision about where she might live, the country's highest court concluded.
One justice, Lady Hale, deputy president of the supreme court and the UK's most senior female judge, suggested that the teenager's "perception" was as important as that of her parents – who separated about two years ago.
She said the "relevant reality" was that of the child, not the parents. She added: "This approach accords with our increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents' decisions."
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.
The teenager has three brothers aged 11, nine and five. Her father is 47 and lives in the Thames valley, and her mother is 46 and lives in Madrid. None of the family were identified.
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, however, returned to England to spend Christmas that year with their father, but did not return to Spain as scheduled in January last year.
The justices said the mother then started legal action, asking a high court 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 ruling, Hale 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," said Hale.
"But in reality … there are very few disputes about habitual residence. Most applications concern children who have been removed from the country where they have spent all or most of their lives by a parent who is returning to a country which she regards as home but they most definitely do not.
"Cases such as this, where children go to live with one parent in a country where they have never lived before and return after a few months to the country where they had always lived, are very rare."
