Habitual residence - don't leave children in limbo


The Supreme Court has today handed down an important decision concerning a young child who was unilaterally taken abroad by her mother to Pakistan.

The child (“B”) was born in England in 2008 to a British mother (of Pakistani ethnicity) following IVF treatment. The mother was in a same sex relationship with her partner who was also British (of Indian ethnicity). The parties had never married or entered into a civil partnership but had lived together as a couple. Following the acrimonious breakdown of the couple’s relationship, the mother and B relocated to Pakistan, without the mother telling her former partner of her decision.

The ex-partner sought orders for shared residence of and contact with B but the application was dependent upon her being able to show that B was “habitually resident” in England. Both the High Court and the Court of Appeal said that the English Courts did not have the jurisdiction to hear the application because, as she was living in Pakistan, B was no longer habitually resident here.

However, on appeal, the Supreme Court overturned those decisions and said that B was habitually resident in England. Lord Wilson, giving the lead judgment, said that the traditional English law approach had been to focus heavily on parental intention. Indeed, the Courts have previously found that habitual residence can be lost in a single day.

The Supreme Court has now brought the law on this area into line with European decisions and has placed the focus on the circumstances and interests of the child rather than the intention of the parent. This will now reduce the possibility of children being left in a state of limbo and no court being able to deal with issues concerning their welfare.

This decision of the Supreme Court will have significant and far-reaching consequences for the many international and mobile families that exist in 21st century England. This was the first case involving removal of a child in a same sex family, and the decision represents an acknowledgment by the Court of modern day family structures.

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The second woman then launched legal action and asked judges to order the youngster’s return to the UK. A high court judge and court of appeal judges concluded they did not have the jurisdiction to make such an order because the girl was not habitually resident in the UK when legal proceedings were launched. But supreme court justices have overturned those decisions. They ruled on Wednesday that the girl had been habitually resident and allowed an appeal by the second woman.
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