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Supreme Court: child of same sex couple habitually resident in the UK

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March 28, 2024

The daughter of a same sex couple was legally resident in the UK when her biological mother took her abroad, the Supreme Court has ruled.

The case concerned a girl referred to as ‘B’, who is now aged seven. Her biological mother is a British woman of Pakistan background, who was involved in a same sex relationship for a number of years with another British woman, of Indian ethnicity. They set up home together but did not marry or become civil partners.

B was born following fertility treatment while the couple lived together and the couple proceeded to co-parent B.

Then, in late 2011, their relationship broke down “acrimoniously” and the couple separated. The mother’s partner still saw B, but the amount of contact the two enjoyed was gradually reduced. Meanwhile the mother moved to Pakistan in February 2014 with B, in order to be with members of her wider family.

Unsurprisingly, the mother’s partner was very unhappy about B’s removal, insisting that she was also B’s mother. She applied to have the girl made a ward of court, arguing that the seven year old was habitually resident in England .

But the Court of Appeal was unconvinced, declaring that it was uncertain whether B was habitually resident in either the UK or Pakistan. They also did not think the former couple’s dispute was sufficiently serious to justify making the girl a ward of court, while at the same time admitting the persecuted status of lesbians in Pakistani society.

The case proceeded to the Supreme Court, on the issue of B’s habitual residence: had this ceased to be the UK as soon as her mother took her to Pakistan?

The Supreme Court has now ruled that it did not. B had been habitually resident in England at the time her mother took her abroad and the English courts did therefore hold the necessary jurisdiction to make rulings on B’s welfare and should now do so.

The majority 3-2 ruling was delivered by Supreme Court Justice Lord Wilson. He declared:

“The judge may wish to consider whether to make B a party to the application, acting by a children’s guardian, and, if so, whether to invite the guardian to instruct an independent social worker to interview B in Pakistan and to explore the circumstances of her life there.”

He added:

“Were the court’s eventual conclusion to be that it was in B’s interests to return to England, either occasionally, in order to spend time with the [mother’s former partner] here, or even permanently, in order to reside here again whether mainly with the [mother] or otherwise, its order could include consequential provision … for the mother to return her, or cause her to be returned, to England for such purposes.”

Lord Clarke and Lord Sumption dissented.

The case is believed to be the very first in which a child had been taken abroad by a parent in a same sex relationship.

Read Re B (A Child) here.

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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