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Court of Appeal judges disagree in Pakistan residency case

Both multinational residency issues and child abduction are frequent topics on this blog. Cases involving children always have an emotional charge and there is a special complexity to those which cross borders. In a recent Court of Appeal judgement, those learned legal authorities the Lords Justice Thorpe, Rimer and Patten wrestled with the complexities of a multinational residency case, but, intriguingly, could not agree on one particular issue.

In case described by Lord Justice Patten as “both disquieting and not unfamiliar”, the parents in a family of Pakistani origins separated and the father returned to Pakistan. Later the mother took the couple’s three children on holiday to the country. While there, she was “forced” to resume her relationship with the father, and prevented from returning the UK at the end of the holiday. Later still, after the birth of a fourth child, a boy referred to the documents as ‘H’, the mother fled the country without her children.

Back in the UK, she obtained legal orders for the return of all four children, on the basis that they were ‘habitually resident’ in the UK. ‘Habitual residence’ is an important legal concept but it essentially just means the place you normally live for a particular purpose.

The father challenged the jurisdiction of the court in a hearing before Mrs Justice Parker in the High Court of Justice Family Division. She reaffirmed the orders, relying in the case of H, who had been born in Pakistan, on the precedent set by the 2002 case of B v H. This states that a child born in one country may be treated as having acquired the habitual resident of the parent looking after him or her.

The father and his brother appealed the judgement, raising issues of jurisdiction and questioning whether H could really be ‘habitually resident’ in the UK when he had never been to the country.

The three learned Appeal Court judges found Mrs Justice Parker’s judgement in the case of the three older children wholly correct. A child’s habitual residence cannot be changed unilaterally by one parent.

To quote Justice Thorpe:

“The High Court correctly identified its responsibility to protect the three older children, the victims of abduction.”

Of the father the judge said:

“By force, threats and coercion he prevented the mother from returning with the three children of the family at the conclusion of the holiday on 3rd November 2009. The mother was powerless to remedy the situation until she could escape from the prison that the father and his family had created for her.”

He noted also that Pakistan is not a signatory to the 1980 Hague Convention on child abduction, which would have made seeking a return of the children considerably easier for the mother. Instead she had to rely on seeking wardship within the UK as the jurisdiction in the children’s place of habitual residence.

However, the judges failed to agree on the question of H, the child born in Pakistan. Lord Justice Patten ruled that the original judge’s decision to declare his habitual residence to be the UK had been made without jurisdiction and “must be set aside”. He could not accept the concept of children born abroad  acquiring the habitual residence of their parents – and Lord Justice Rimer agreed.

Lord Justice Patten asked the two parties to submit written submissions on the question of ‘forum conveniens’ – the appropriate court for further consideration of the issues. The court will consider these submissions in an additional judgement.

Lord Justice Thorpe, by contrast, declared in a dissenting ruling that “the defeat of abduction must be supported” and the father and uncle’s appeal should therefore be dismissed. But of course, he was outnumbered by his colleagues.

So the father may have won the day with regard to his youngest child. But what will happen to little H now? Yes, he is Pakistani. He was conceived and born in the country, and has spent his entire life to date there. But I find the image of him of being separated from his siblings if and when they return to the UK an unhappy one.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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