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Habitual Residence - The way forward?

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On 03 February 2016 the Supreme Court handed down an important Judgment which redefines the way habitual residence is to be considered in the English Courts.

Facts

The parties were in a same sex relationship. The case concerned a little girl ‘B’, now aged 7, who had been taken to Pakistan by the Respondent Mother, unbeknown to the Appellant. The Appellant, was not considered to be B’s legal parent under the law and did not have parental responsibility for her. The removal to Pakistan was therefore not considered to be unlawful as she was with her legal parent. The parties were in a relationship from 2004 until December 2011 when this broke down. Contact between the Appellant and B took place, although this reduced over time. On 03 February 2014, the Respondent left the jurisdiction of England and Wales and travelled to Pakistan with B.

Background

Children Act proceedings were issued by the Appellant on 13 February 2014 as she believed that B was still in England.  Subsequently, proceedings under the inherent jurisdiction were commenced when the Appellant learnt that B was in Pakistan. The matter came before Mrs Justice Hogg between 29- 31 July 2014 and it was held that the English Court could not exercise jurisdiction over B as she was not habitually resident here from the date of her removal to Pakistan.  It was also held that the circumstances of this case did not allow the Court to exercise its powers to protect children whilst outside the jurisdiction of England and Wales.  

The Appellant was granted permission to appeal the findings and the Court of Appeal dismissed the Appellant’s appeal on 06 August 2015.

The Appellant therefore applied to the Supreme Court to appeal the decision made in respect of B’s habitual residence and sought consideration as to whether the circumstances of the case were ‘dire and exceptional’, so as to allow the Court’s inherent jurisdiction to be exercised.  

Supreme Court Judgment

The Supreme Court allowed the Appellant’s appeal as it was considered that B remained habitually resident in England on 13 February 2014.  

The test to consider is:

  • the level of the child’s integration within his or her environment,
  • consideration of the adult pre planning of the move;
  • and consideration of the status of all of the key members in the child’s life.

In B’s case her ties to England were found not to have not been severed and she had not yet established significant roots in Pakistan. The Appellant remained in England and therefore B retained a strong link in this country.

Importantly, it was clarified that it is unsatisfactory for a child to be placed in ‘limbo’, having no place of habitual residence. In respect of inherent jurisdiction, it was considered in the Judgment that it may not only be the case that this can be exercised in extreme circumstances. However, the Court did not go further than this, as it had already been decided that B’s place of habitual residence was England when the Appellant commenced her initial Children Act application. 

The matter will now be returned to the High Court for a decision regarding B’s welfare. It will be interesting to follow the developments of this case. The full Judgment can be found here

Should you require advice or assistance in relation to a family case with international issues please contact us on 020 3440 8000. 

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