James Turner QC and Alistair Perkins (instructed by Dawson Cornwell ) for the mother; Edward Devereux (instructed by Thompson & Co ) for the father.
The Supreme Court having held that the High Court of England and Wales had jurisdiction to order the “return” of a small child who had never lived or even been in England, on the basis that he had British nationality (see A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] 3 WLR 761), the issue of whether the youngest of the four children of the family ("H") should be returned to this country was remitted for determination to the judge who had heard the initial proceedings. The three older children, born and brought up in England, had been undoubtedly wrongfully retained in Pakistan, as found by the judge in February 2012 and accepted by the Supreme Court. Their mother had travelled to Pakistan with the three children to be met by a concerted family action which had led her to be detained against her will and subjected to an enforced reconciliation with her estranged husband resulting in H’s birth, who was born as a result of their resumption of marital relations. The mother had managed to escape to England but without the children and had been trying to secure the return of all four children for well over two years.
Order for return made. On the facts, the three older children remained habitually resident in the jurisdiction. The sole question in respect of H was: could a child who was integrated into his family of origin (the mother and the other children who were habitually resident in England) be said to be habitually resident in the jurisdiction if he had never been here? The Supreme Court had not doubted the existence of the nationality jurisdiction but had accepted that there were reasons for "extreme circumspection": see [2013] 3 WLR 761, para 62. It all depended on the circumstances of the particular case and, at para 65, the court had set out six factors, in clearly directive terms, to be taken into account when making the present evaluation. In considering the appropriate forum in which to decide H's future it was crucial that the older children had spent their lives in, and had been found to be habitually resident in the jurisdiction; and that it was a jurisdiction to which the father owed primary allegiance in the sense of nationality (although he also had Pakistani nationality), of his having been born here and having grown up here, and of his having spent his adult life here. The only reason why the children were in Pakistan had been because of coercive measures by the father. Looking at the practicability of the mother litigating the children's future in Pakistan, the issue was the coercion to which she had been subject there. It was also an established fact that the father and his two brothers had attempted to manipulate the English legal system through their litigation behaviour. It would be much easier for the father to continue to do that in the country in which he had been living for almost four years now while the mother was firmly rooted in England. Furthermore, the mother would have no capacity financially to access legal advice in Pakistan. For the father it would be the easiest thing to return here to the country which was in reality his home, where there was family property, where members of his family lived and where he had a dormant business. It was obvious that the three oldest children's future should be litigated here. The return order in respect of those children stood. H was one of a sibling group of four. Their futures should be decided together. The father would be directed to bring the children back to the jurisdiction immediately and to take all steps within his power to implement that return, and the children would not be removed thereafter without the agreement of the court (paras 3, 4–7, 12–17, 20).
On 20 June 2011, on the without notice application of the mother, Peter Jackson J assumed jurisdiction over her four children, three of whom had been born in England and the youngest in Pakistan, on the basis that all four were habitually resident in England, made each child a ward of court and ordered the father to return them to England forthwith. On 20 February 2012, after an inter partes hearing at which the father was not present, Parker J [2012] EWHC 667 (Fam) made an order to like effect. On 26 October 2012 the Court of Appeal (Thorpe, Rimer and Patten LJJ) dismissed the father’s appeal against Parker J’s order in respect of the three older children but (Thorpe LJ dissenting) held that the English court had no jurisdiction in relation to the youngest child because, never having been physically present in England, he could not be said to be habitually resident in England. On 6 June 2013 the Supreme Court (Baroness Hale of Richmond, Lord Kerr of Tonaghmore and Lord Hughes JJSC) gave the mother permission to appeal that decision on the additional ground that the English court had jurisdiction in respect of that child by reason of his nationality.