In the first international child abduction case involving same-sex parents, the Supreme Court has decided that the English court still has jurisdiction to make decisions about the welfare of a child (B) who was taken to live in Pakistan by her biological mother.
The decision in Re B (A Child) (Habitual Residence: Inherent Jurisdiction)  UKSC 4 is seen as a significant step forward in modern family case law. It was expedited by the Supreme Court because of its importance in family law on a national and international level.
The Supreme Court decision emphasises the need to focus on the position of the child in the proceedings rather than the intention of the parent who abducted them. The court has focused on the importance of ensuring that a child is not left in legal limbo when moving abroad.
The child’s parents were a same-sex couple who were in a relationship from 2004 – 2011. The couple lived together although did not enter into a civil partnership. The child (B) was born in April 2008 through IUI (her father is an unknown sperm donor). The couple co-parented, although the biological mother undertook the majority of the childcare.
The relationship broke down in 2011. After they separated, the birth mother reduced the second mother’s contact with B, and took B to Pakistan with her on 3 February 2014. The non-biological mother was not aware that B had been taken abroad, and sought a shared residence order through the English court.
On 6 June 2014, upon discovering that B had been taken to Pakistan, the non-biological mother applied to the court for her to be made a ward of court and to be returned to England, arguing that B was habitually resident in England and Wales at the time she made her application.
History of decisions in the case
Mrs Justice Hogg at the court of first instance dismissed the application. She found that the English court did not have jurisdiction because B had lost habitual residence here as soon as she moved to Pakistan. She also found that the court should only use its inherent jurisdiction if the circumstances were “dire and exceptional” and that this case did not meet those criteria.
The Court of Appeal dismissed the non-biological mother’s appeal and so she then appealed to the Supreme Court in respect of both aspects of the decision.
The Court of Appeal did however note that Pakistan does not recognise same-sex relationships and so this would have meant that the non-biological mother would not have been able to establish a relationship with her daughter through the Pakistani courts.
The Supreme Court decision
The Supreme Court decision centred around the question of habitual residence (ie which country a child was considered to live in). It is often unclear at what moment a child loses habitual residence in one country and gains it in another when moving between countries.
After a balancing exercise as to the factors which may have meant that B gained habitual residence in Pakistan against those that may have meant that she retained habitual residence in England, it was decided (by a 3:2 majority) that B was habitually resident in England and Wales still, and so B must be returned to the UK.
The court emphasised that:
•it was not in a child’s best interests to be routinely left without habitual residence; and
•the English court’s interpretation of habitual residence needs to be in line with the international interpretation.
In addressing the point about when a child loses habitual residence, the Supreme Court noted that traditionally in the English courts, the decisions have been heavily influenced by parental intention. It was noted that if there are arguably two different paths, then the court should follow the path it deems to better serve the child’s interests. There should not be a period of time when a child is left with no habitual residence and so the point at which they are transferred from one country to another should be the focus, ie the point of disengagement from the original home environment.
In this case, the Supreme Court found that by the time the non-biological mother made her application, the child had not disengaged to the level required to mean she would lose habitual residence here.
The law (in particular in family cases) is often seen as outdated and out-of-kilter with modern life. This judgment by the Supreme Court is a step in the right direction to ensure that the interests of the children are kept at the heart of every case, including those with an international aspect, so that the decision made is the right one for the child, rather than a decision determined by the actions of one parent.
Parents thinking about moving abroad with children should think carefully about the steps that they need to take before doing so and may wish to consider my guide to moving abroad.
This article first appeared on http://www.tltsolicitors.com on 5 February 2016.