Supreme Court: English High Court can intervene in family disputes even if a child is not habitually resident

Children|Divorce|Family Law|September 9th 2013


The Supreme Court has ruled that the English courts can intervene in a dispute over the residence of a British child who has never been to this country.

In the Matter of A (Children) concerned children born to a couple with a Pakistani background. The father was born in the UK had lived most of his life in this country. The mother, meanwhile, was a Pakistani national and married the father while in that country, later coming to England to live with her husband.

The couple had three children, now aged 12, 10, and eight, all born in the UK. The couple separated in 2008, with the mother alleging the father had been abusive to her. She moved to a woman’s refuge.

The following year, the mother travelled to Pakistan with the children to visit her own father. While in the country was pressured by her family into attempting a reconciliation with her husband. The children’s passports were taken from her and she was unable to return to England.

The woman fell pregnant with a fourth child, who was born in Pakistan. Later she escaped the father’s home and fled back to England in May 2011, but was forced to leave her children behind.

Back in this country, she launched legal proceeding for the return of the children. The original judge ruled in her favour, saying all four children were habitually resident in England. The older children had been raised in England while the youngest child had acquired habitual residence here through being born to a mother who was being held against her will in Pakistan. The mother had not agreed to the children relocating to Pakistan.

The judge made the children wards of court and ordered the father to return the children to the UK.

The father argued that that the English courts did not have jurisdiction because the children were not ‘habitually resident’ (resident for legal purposes) in this country.

The Court of Appeal firmly ruled against him in the case of the three older children, all born in the UK, describing the father’s case as “hopeless”. He could not unilaterally change the children’s residence, the court declared But they allowed his appeal in the case of the youngest child, called ‘Haroon’ in case reports. The boy could not be habitually resident in this country, they said, because he had never been to Britain. Habitual residence was a “question of fact” they said, and required physical presence in this country.

The case proceeded to the Supreme Court on the specific issue of the English courts’ jurisdiction in the welfare of Haroon. After a careful analysis of relevant international law, the Supreme Court concluded that that being physically present in a country at some time is necessary  to acquire legal habitual residence there and so Haroon could not be legally resident in England and Wales. There could be no rule that a child automatically takes on the habitual residence of its parents.

However, the Supreme Court also noted that the High Court could have common law jurisdiction even when children are not habitually resident in an EU member state. The legal principle of parens patriae could apply. This allows a state to intervene in the case of one of its nationals and take action in their best interests.

The Court therefore sent the case back to the High Court for an urgent additional decision on whether or not it would be appropriate to take action on the basis of this legal power.

Supreme Court Deputy President Lady Justice Hale said:

“In my view, there is no doubt that the jurisdiction exists…The question is whether it is appropriate to exercise it in the particular circumstances of the case.”

It was thought that the principle of parens patriae had been all but abolished in 1986, but in this particular type of case, it has not been it seems. It is great once again to see that the Supreme Court, led by the ingenious Lady Hale and Lord Wilson, as they were in the Prest case, prepared to stand up to those who dare to challenge the might of the English courts to try get away with nefarious conduct. At heart, this is what our fantastic justice system is all about – and long may it remain so!

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