Supreme Court

In re B (A Child) (Reunite International Child Abduction Centre and others intervening)

[2016] UKSC 4

2015 Dec 8 9;
2016 Feb 3

Baroness Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Sumption, Lord Toulson JJSC

Children — Custody rights — Jurisdiction — Habitual residence — Child born in England to mother in same sex relationship with applicant — Mother permanently removing child to Pakistan after separating from applicant — Applicant seeking shared residence order, contact order and orders to assist her in locating the child — Court declining jurisdiction on ground that child no longer habitually resident in England when application issued — Whether child’s habitual residence in England and Wales lost on arrival in Pakistan — Whether child remaining habitually resident in England and Wales — Whether jurisdiction to make orders sought

Facts

The applicant and the mother, both British nationals of Indian origin and Pakistani origin respectively, were in a same sex relationship from 2004 to 2011. In April 2008 the mother gave birth to B, using an unknown sperm donor of Asian ethnicity. Shortly before B’s birth the applicant and the mother bought a house in their joint names and lived there with B, who had a loving relationship with them both and regarded them as her parents. In December 2011 the relationship between the applicant and the mother broke down and the applicant left. Initially the applicant continued to have some contact with B but the contact was progressively reduced by the mother. On 3 February 2014, without the applicant’s knowledge, the mother took B to Pakistan with the intention of living there permanently. On 13 February 2014, the applicant, still unaware that B had been taken to Pakistan, issued proceedings under the Children Act 1989 in respect of B for shared residence or for contact. In May 2014 the applicant discovered that B and the mother had gone to Pakistan. The judge refused the application on the basis that the court had no jurisdiction to determine it because B had lost her habitual residence in England on arrival in Pakistan 10 days before the application was issued, although it was probable that she had not obtained habitual residence in Pakistan by that date, B’s wish to remain in contact with the applicant not being enough for the continuation of her habitual residence in England. The Court of Appeal upheld the judge’s decision and dismissed the applicant’s appeal.

Held

On the applicant’s appeal—

Held, appeal allowed (Lord Clarke of Stone-cum-Ebony and Lord Sumption JJSC dissenting). A consequence of the modern international primacy of the concept of a child’s habitual residence was that it was not in the interests of children routinely to be left without a habitual residence so that the machinery of international instruments designed to achieve an orderly resolution to issues relating to them did not operate as primarily intended. It was important that where possible a child should have a habitual residence. In adult disputes about children, the presence of children in a particular state on a particular day was an unsatisfactory foundation of jurisdiction because by moving the children from one state to another, one of the adults could easily invoke a favourable jurisdiction or pre-empt invocation of an unfavourable one. In the courts of England and Wales the interpretation of the concept of habitual residence should be consonant with its international interpretation. The modern concept of a child’s habitual residence operated in such a way as to make it highly unlikely, albeit conceivable, that a child would be in the limbo in which the courts below had placed B. The concept operated in the expectation that, when a child gained a new habitual residence, he lost the old one. As a child put down those first roots which represented the requisite degree of integration in the environment of the new state, the child’s roots in the old state would probably come up to the point at which he achieved the requisite de-integration or disengagement from it. The deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day to day life in the new state, probably the faster would be the child’s achievement of that requisite degree of integration. If all the central members of the child’s life had moved with him, probably the faster the achievement of the requisite integration whereas if any of them were left behind and thus represented for the child a continuing link with the old state, probably the less fast the achievement of integration would be in the new state. It followed that the judge had asked herself far too narrow a question in asking whether B’s wish to remain in touch with the applicant was enough to sustain a continuation of B’s habitual residence in England on 13 February 2014. The real question was whether B had by then achieved the requisite degree of disengagement from her English environment, and highly relevant to the answer would be whether she had by then achieved the requisite degree of integration in the environment of Pakistan. The cumulative effect of all the circumstances relating to B’s removal to Pakistan, including the fact that she had lived in England throughout her life and had never been to Pakistan, that her language was English and that the applicant, who was the second most important figure in B’s life and with whom she had retained significant emotional links, had been left behind in England, led to the conclusion that B had still retained her habitual residence in England at the time when the application had been issued. Therefore the application could and should proceed to substantive determination, possibly with B being made a party to the application. (paras 30, 31, 45, 46, 48, 50, 51, 57).

Cases considered

Proceedings brought by A (Case C-523/07) [2010] Fam 42, ECJ and Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, ECJ considered.

Dictum of Lord Brandon of Oakbrook in J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 578–579, HL(E) disapproved.

Appellate history

Decision of the Court of Appeal [2015] EWCA Civ 886; [2016] 2 WLR 487 reversed.

Appearances

David Williams QC, Alistair Perkins, Michael Gration and Mehvish Chaudhry (instructed by Freemans Solicitors) for the applicant.

William Tyler QC, Hannah Markham and Miriam Carrion Benitez (instructed by Goodman Ray Solicitors) for the mother.

Richard Harrison QC, Marion Reardon and Jennifer Perrins (instructed by Farrer & Co) for Reunite International Child Abduction Centre intervening by written submissions only.

Henry Setright QC and Hassan Khan (instructed by Dawson Cornwell) for the International Centre for Family Law, Policy and Practice intervening by written submissions only.

Diedre Fottrell QC and Michael Edwards (instructed by Bindmans LLP) for the AIRE Centre intervening by written submissions only.

Reported by: Shiranikha Herbert, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.