The Supreme Court is today hearing a mother’s appeal to secure the return of her Pakistan-born child to the UK.
In the case of ZA & Anor v NA EWCA Civ 1396 the mother entered the UK in 2000, shortly after being entered into an arranged marriage with her cousin. She gave birth to three children. A fourth child was born in Pakistan, where the mother was later held against her wishes.
Following the birth of the couple’s three children in the UK, their relationship became strained. Eventually it broke down and the estranged husband returned to Pakistan. The rest of the family remained in the UK.
Later, the mother took the children on a holiday to Pakistan but on arrival, she was pressured by the husband’s family and her own family to reconcile. She agreed to do so, on condition the family would return to England.
However her stay in Pakistan soon became involuntary. The children were entered into local schools against her wishes and the husband took possession of all the family’s passports.
During this period the fourth child, called “H” in case reports, was born. Shortly afterwards, the mother managed to escape to the UK leaving all four children behind.
On arrival back home, the mother obtained orders (ex parte) for the children to be returned to the UK as they were habitually resident in the jurisdiction of England and Wales. This was challenged by the father but rejected in court. A declaration for the return of the children was reaffirmed.
The children’s father and paternal uncle then took their case to the Court of Appeal. The Court of Appeal upheld the original order for the three older children to be returned to the UK. However it remained split in its determination of the habitual residence of H, born in Pakistan.
In the Court of Appeal, Lord Justice Patten concluded that he could not, at the moment, envisage any case in which a finding of habitual residence could be factually justified in respect of a child who was born and remained abroad.
Lord Justice Thorpe, dissenting, stated that child H took his mother’s habitual residence at birth as “the defeat of abduction must be supported” and that this case fell “narrowly on the right side of an important boundary.”
In the Supreme Court
The Supreme Court is now expected to rule, subject to a review of existing case law, on whether newborn babies could be presumed to take on the habitual residence of the custodial parent(s).
James Turner QC, of 1 King’s Bench Walk and Alistair Perkins, of 4 Paper Buildings, are representing the mother. Henry Setright QC, of 4 Paper Buildings and Edward Devereux, of Harcourt Chambers, are representing the father.
You can find the original article on Family Law Week