A child abduction case in the Supreme Court: ZA & Anor v NA

Family Law|July 22nd 2013

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[2012] 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.

Background

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).

Reunite, CFAB and The Centre for Family Law and Practice have all intervened in the case at the Supreme Court stage.

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

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Comments(4)

  1. Luke says:

    What a mess, and some people really are not very sensible.

    She was in an arranged marriage that failed but despite this she thinks it is a good idea to take the children off to Pakistan where his family lives and where she has no control over what might happen – .

  2. Anonymous says:

    You got to wonder about a strong link between the growing number of child abductions (which are illegal) and the phenomenon of leave to remove (legal child abduction). It seems that the total hypocrisy of granting one parent leave to remove against the wishes of the other parent (and indeed the child, if they were given a voice) just fuels the sense among less scrupulous parents that child abduction is also okay. Britain has only itself to blame for the child abductions epidemic, by stubbornly refusing to bring itself up to date on equality and by being so hypocritical on the matter of granting leave to remove so easily to one party.

  3. Paul says:

    A perspicacious assessment, Anonymous. The UK is clearly out of step on this issue compared with other jurisdictions which ban moves away to escape the other parent.

  4. JamesB says:

    Had to look-up that word, nice one Paul :-).

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