Appeal to Supreme Court by non-biological mother against decision that court did not have jurisdiction to deal with application seeking return of child removed to Pakistan. Appeal allowed.
Background to the appeal
The girl at the centre of this appeal, B, is a British national now aged 7. The Respondent (a British national of Pakistani ethnicity) is B’s biological mother and was previously in a same-sex relationship with the Appellant (a British national of Indian ethnicity), who has strong claims also to be described as a mother of B. The couple lived in England and set up home together, but they never became civil partners. Following IUI treatment, given to them both as a couple, the Respondent gave birth to B in April 2008. The Respondent undertook most of B’s care but the Appellant also helped care for her and, as co-parents, they took B out at weekends, in particular to visit members of their families.
In December 2011, the relationship broke down acrimoniously and the Appellant left the family home. Over the next two years, the Respondent progressively reduced the level of the Appellant’s contact with B. The Appellant objected and suggested mediation. Meanwhile, the Respondent decided privately to move with B to live in Pakistan where she says members of her wider family remain. She did not share this decision with the Appellant. On 3 February 2014 the Respondent moved to Pakistan with B where they have remained ever since. Although the Appellant did not consent to it, B’s removal to Pakistan was lawful. On 13 February 2014, unaware where the Respondent had taken B, the Appellant applied under the Children Act 1989 (“1989 Act”) for orders for shared residence of B, or for contact with her. This application depended upon showing that B was “habitually resident” in England at the time it was issued (i.e. 13 February 2014). Subsequently, having learned that the Respondent had taken B to Pakistan, the Appellant also applied for orders under the court’s inherent jurisdiction over B (as a British national) that she be made a ward of court and returned to England.
In July 2014 Hogg J held that (a) the English court had no jurisdiction to determine the Appellant’s 1989 Act application because B had lost her habitual residence immediately upon her removal to Pakistan on 3 February 2014; and (b) the inherent jurisdiction over a British national who was neither habitually resident nor present in England should be exercised only if the circumstances were “dire and exceptional”, and this was not such a case. On 6 August 2015, the Court of Appeal dismissed the Appellant’s appeal. The Appellant appeals to the Supreme Court in respect of both applications.
The Supreme Court allows the appeal on the Appellant’s application under the 1989 Act by a majority of 3:2 (Lord Clarke and Lord Sumption dissenting) on the basis that B remained habitually resident in England on 13 February 2014. Lord Wilson gives the lead judgment.
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