Within a space of 2 weeks I’ve been involved in 2 cases where a Local Authority sought to separate siblings in questionable circumstances. Thankfully robust Judges (in my view) helped the relevant Local Authorities back to sensible thinking. But it got me thinking about the rights of siblings to reside together, its import and how to protect it within difficult care and private law proceedings. So here is a short run down including some helpful obiter dicta in the groundbreaking case concerning habitual residence, in the matter of LC (Children) (No 2), 2014 UKSC. But we can start in 1988 (the year the Iran – Iraq war ended, the winter Olympics were hosted in Canada and the movie Twins was one of the must see),
“it really is beyond argument that unless there are strong features indicating a contrary arrangement that brothers and sister should, wherever possible, be brought up together, so that they are an emotional support to each other in the stormy waters of the destruction of their family..”
So LJ Purchas stated so eloquently in, C v C (MINORS:CUSTODY) 1988 2 FLR 291 at page 302. A private law case, this remains good authority and sets out the clear starting point.
Few waters could be more stormy for siblings than the removal from their natural parent or parents. Section 22C(8) of the Children Act 1989 provides that there is a specific duty upon the Local Authority when looking after a child (whether or not in care), when also looking after a sibling (whether or not in care) to accommodate them together so far as is reasonably practicable and consistent with their welfare. To place siblings together is a duty, and a failure to comply with this requirement, without good reason, may leave that failure open to challenge by way of judicial review ( Hershman and McFarlane Children Law and Practice F-48).
The recent Supreme Court Judgment, in the matter of LC (Children) (No 2), 2014 UKSC 1 provides some powerful dicta which helps underline the import of the sibling relationship in that case. The case of course concerned the habitual residence of four children (‘T’ a girl aged 13), ‘L’ ( a boy aged 11), ‘A’ (a boy aged 9) and ‘N’ (a boy aged 5) whose mother brought a case against the father for their return to Spain. They had moved to and resided in Spain for some months in 2012. The Supreme Court found that ( the older sisters) T’s assertions about her state of mind during her residence in Spain in 2012 were relevant to a determination whether her residence there was habitual and set aside the finding of habitual residence in respect of all 4 children.
Giving the leading Judgment Lord Wilson says;
“ But there is another feature in play: it is the presence of their older sister, T, in the daily life of all three of the boys. Ms Vivian described the four children as a very close sibling group. There was a solidarity in the presentation of the three older children to her.” (Para. 43)
“By a narrow margin, I find myself persuaded that the proper course is to set aside the finding of habitual residence in respect also of the three boys so that the issue can be reconsidered in relation to all four children.” (In the matter of LC (Children) (No 2), 2014 UKSC 1 at Para.43) .
Lets hope , that where they should, all siblings get to enjoy each other in their daily lives.
Garden Court Chambers
11th February 2014