In the judgment given on 3 February 2016, the Supreme Court allowed the appeal by a majority of 3:2 (Lord Clarke and Lord Sumption dissenting) holding that the unilateral removal of the child (B) to Pakistan by the biological mother did not cause the child to lose her English habitual residence. This is the first international abduction of its kind involving a child of a same sex couple and is of significance to show the willingness of the English courts to make an order affecting a child no matter where they may be located in the world.
‘B’ is aged 7 and is a British national. The Respondent in the case is B’s biological mother and the Appellant, who was in a same sex relationship with the Respondent, is B’s non biological mother.
Following the breakdown of the same sex relationship, the Respondent took B with her to Pakistan. The Appellant subsequently applied for orders for the shared residence of B or for contact under the Children Act 1989 without knowing where B had been taken. Upon learning of B’s location, the Appellant applied for an order that B be made a ward of the Court and have B returned on the basis that she is a British national. The Appellant argued that B was habitually resident in England when she started proceedings under the Children Act 1989. The main issue within the case was essentially whether B had remained ‘habitually resident’ in the UK when her birth mother relocated her to Pakistan.
The High Court and Court of Appeal both found that B was not habitually resident on 13 February 2014.
Supreme Court Judgment
The Supreme Court allowed the appeal holding that the removal of B to Pakistan did not lead to B losing habitual residence. The English Court therefore had jurisdiction to make decisions regarding B’s welfare. Lord Wilson who gave the leading judgement first commented that it is not in the interests of children routinely to be left without a habitual residence. Secondly, the English courts’ interpretation of habitual residence should be consonant with its international interpretation. In Lord Wilson’s view, the case in question involved a further third concept of habitual residence: the circumstances in which a child loses his or her habitual residence. Lord Wilson was heavily influenced by the Supreme Court judgment in A v A which held that that the English concept of habitual residence should be governed by criteria set out in the CJEU jurisprudence –that there must be some degree of integration by the child in a social and family environment.
Lord Wilson went on to state that the right question is whether B had by 13 February 2014 achieved the requisite degree of disengagement from her English environment. He concluded that taken cumulatively, the factors pointing to the conclusion that B had not by 13 February 2014 achieved the requisite degree of disengagement compel the conclusion that she retained habitual residence in England.
Simon Bruce, the partner of Farrer & Co who acted for Reunite International Child Abduction Centre commented on the case: “Is it correct that, by the clandestine removal of the child to Pakistan, the respondent has placed the child’s interest beyond all judicial oversight? The resounding answer is no.”
He also went on to say that “The judgment is of huge practical significance – and is a remarkably humane and modern judgement. The Court has sent out the message that a parent with sole legal rights will no longer succeed in avoiding proceedings by abducting a child. The child’s pre-existing habitual residence will rarely be lost until a new habitual residence has been gained. In a case involving unilateral action by an abducting parent, this is unlikely to be accomplished instantaneously but will require a period of time to elapse.”
This case is indeed a landmark case for international family law and habitual residence related issues. If you have any further questions or queries relating to international family law, please contact Andrew Barton or Mark Smith, partners in the family team at Stephens Scown on 01392 210700.