The Supreme Court has today published an important decision about the circumstances in which the English Court has jurisdiction over children who are not physically present in the jurisdiction.
B, a seven year old girl at the centre of today’s Supreme Court judgment was born in 2008 to the respondent (who had undergone IVF treatment). At that time the respondent was in a same-sex relationship with the appellant. Following the breakdown of the parents’ relationship in December 2011, B lived with the respondent, her biological mother and sole legal parent. On 3 February 2014, the respondent relocated to Pakistan, taking B with her, to explore business opportunities, with the intention to remain there indefinitely.
On 13 February 2014, the appellant, not knowing where B was, made an application for a child arrangements order. It was not until three months later that the appellant was made aware that B was in Pakistan with the respondent. The appellant sought an order for B’s return to England and argued that, despite B’s presence in Pakistan, the English court had jurisdiction on the grounds that:
- B was habitually resident in England prior to her removal; and
- B was a British national which entitled the court to exercise its inherent jurisdiction.
At first instance, Hogg J concluded that B was not wrongfully removed from England. B had relocated with her primary carer and sole legal parent to Pakistan. B may not have yet obtained habitual residence in Pakistan but she was no longer habitually resident in England. Although Hogg J acknowledged the principle that children are entitled to protection while outside the jurisdiction, based on their British nationality, the power to invoke this argument should only be exercised in ‘dire and exceptional’ circumstances.
The Court of Appeal dismissed the appellant’s appeal, holding that Hogg J was entitled to conclude that, on 3 February 2014, B had lost her English habitual residence and that, although B would suffer detriment from the loss of involvement of one parent, the circumstances were not so “exceptionally grave” to warrant making an order based on B’s British nationality.
Many practitioners hoped that the Supreme Court’s judgment would provide clarification about the court’s ability to exercise jurisdiction over children who are British nationals. However, in a majority decision, the Supreme Court declined to take this opportunity.
There was no need to consider the “British nationality” jurisdiction in great detail because the lower courts had incorrectly concluded that B was not habitually resident in England when the appellant commenced the Children Act proceedings. It was observed that, while the British nationality jurisdiction must be exercised with caution and the need for comity with the courts of other jurisdictions, it is unhelpful to regard it as only available in extreme circumstances.
The key to the success of the appeal was the Supreme Court’s clarification that it is no longer correct to suggest that a child’s habitual residence can be lost “in a day” when a parent leaves with a settled intention not to return. Under the “modern” concept of habitual residence, when a child gains a new habitual residence, he or she loses the old one.
A child’s habitual residence will be determined by the level of a child’s integration within his or her environment. The Supreme Court concluded that B had not sufficiently disengaged from her English environment at the point at which the Children Act proceedings were commenced and the respondent’s intention to live in Pakistan indefinitely was not in itself determinative in changing B’s habitual residence.
Simon Blain, a partner in the Penningtons Manches family law team, said: “This was a difficult case due to the lack of reciprocal treaties between England and Pakistan and the impossibility for the appellant to seek involvement in her child’s life through the courts in Pakistan. The Supreme Court has endorsed a more expansive definition of habitual residence, with the effect that is harder than previously thought for a child to lose English habitual residence. In future, there are likely to be more cases where the English Court retains its powers over children who have relocated abroad with one parent.”