Earlier this year, the Supreme Court allowed an appeal by the non-biological mother of a child. The Court held that the unilateral removal of the child to Pakistan by the biological mother did not cause the child to lose her status as habitually resident in England. Therefore, the English courts retained full jurisdiction to make decisions regarding her welfare.
The parties to this case had lived in England in a same-sex relationship from 2004 to 2011. Shortly before the birth of their daughter ‘B’ in April 2008, they bought a family home together, where they lived until the relationship broke down in acrimonious circumstances in December 2011.
The appellant moved into separate accommodation, but continued to pay her share of the finances for the family home and B, while the respondent progressively reduced the level of contact the appellant had with B.
The appellant’s suggestions for mediation to agree contact arrangements failed, and the respondent made plans to move her life and B’s to Pakistan. The child was taken to Pakistan on 3 February 2014, without the knowledge or consent of the appellant.
On 13 February 2014 (ten days later), knowing the child had been removed but unaware that she had been taken abroad, the appellant made an application under the Children Act 1989 for ‘shared residence’ with B, or contact with her. Upon hearing on 6 June 2014 that B was living in Pakistan, the appellant also applied for an order for B to be made a ward of the court and be returned to England.
Both applications were dismissed at the first hearing on 31 July 2014, and again in the Court of Appeal on 6 August 2015. The issues considered by the court concerned:
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Habitual residence – and whether B lost this immediately she left Britain to live in Pakistan with the respondent; and
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Whether it was correct to assume the court’s inherent jurisdiction over a British subject, who was neither habitually resident nor present in England, should only be exercised if the circumstances were ‘dire and exceptional’ – which this case was not.
An added difficulty in this case was that the respondent’s removal of B to Pakistan on 3 February was lawful, as the appellant was not legally B’s parent. B was born in April 2008. Had the insemination that led to B’s conception occurred after April 2009, the appellant would have been treated in law as B’s parent, under s.43 & 44 of the Human Fertilisation and Embryology Act 2008, and could then have applied for parental responsibility under s.4ZA(1)(a) Children Act 1989.
The welfare of B
The Supreme Court were concerned that these judgments of the lower courts failed to consider the welfare of B: without collection of her wishes or feelings, and ignoring the impact of the removal of a significant ‘parental’ figure in her life, in circumstances in which no such application can be entertained in any other court:
Is it correct that, by the clandestine removal of her to Pakistan, the respondent has placed B’s interests beyond all judicial oversight? The court of appeal’s affirmative answer is arresting. It demands this court’s close scrutiny.
Habitual residence
Previous interpretations of domestic and international definitions of ‘habitual residence’ have linked a child’s habitual residence to that of the parent, or the parent’s intent, or their physical presence in a country.
In A v A 2014, and Proceedings brought by A 2010, the situation of the child was seen as more significant than the intentions of either parent. ’Habitual residence’, it was reasoned, should reflect “some degree of integration by the child in a social and family environment… in particular ‘duration, regularity, conditions, and reasons for the stay or move to a particular country, the child’s nationality, attendance at school, linguistic knowledge and the family and social relationships of the child”. Establishing this level of integration in a new country can take a significant period of time, as considered in Re J (A Minor) 1990.
It is agreed that the social and family environments of a pre-school child (such as B at the time of the move) would differ from that of a school-age child.
The court made three suggestions:
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The deeper a child’s integration in the old state, the slower his or her achievement of the requisite degree of integration in the new state.
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The greater the amount of pre-planning of the move, the faster his achievement of the requisite degree; and
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If all central members of the child’s life in the old state have moved with him, the faster the integration.
Lord Wilson considered the lower courts to be incorrect in ruling that B lost her habitual residence completely on leaving Britain on 3 February. Although the child was lawfully removed from the UK by her biological mother, in the genuine belief that the child would have a better life, the child had lived in the UK throughout her life, and the appellant, who was a central figure in that life, had been left behind. When the applications were made, Lord Wilson considered the child had not yet integrated into her new life, and remained a British subject habitually resident in England.
Inherent jurisdiction
Lady Hale set out three reasons why caution should be exercised when deciding whether to exercise jurisdiction:
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That to do so may conflict with the jurisdiction scheme between the countries in question;
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It may result in conflicting decisions in those two countries;
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It may result in unenforceable orders.
She concluded that, in the present case, none of this reasons apply, as there is no applicable treaty between the UK and Pakistan, it is highly unlikely that the court in Pakistan would entertain an application from the appellant due to the country’s current views on homosexuality, and it is possible to take steps to persuade the respondent to obey an order.
Stating that jurisdiction should only be seized in ‘extreme’ cases is therefore too limiting: the real concern is whether a British child needs the protection of the court: “We do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity”.
This decision means that the court has focused on the position of the child abducted, rather than on the intention of the abducting parent. From now on, the child is unlikely to lose his or her pre-existing habitual residence at the same time as the abducting parent, providing protection from any legal ‘limbo.’
This is a landmark case, as it is the first international abduction case involving the child of a same-sex couple. This case is of practical significance, as it states that a parent with sole legal rights over a child will no longer succeed in avoiding proceedings by abducting a child, as the child’s pre-existing habitual residence will only be lost once a new habitual residence has been gained, which will require a period of time.
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