The Supreme Court held by a majority that a child did not automatically lose her habitual residence in England when her mother lawfully took her to Pakistan intending to settle there. Parental intention was relevant but not decisive under the child-focused European concept of habitual residence. Because the child remained habitually resident in England on the date of the application, the English court had jurisdiction under the Children Act 1989.
The family and the removal
B was born in April 2008 and is a British national. From 2004 to 2011 her biological mother, the respondent, lived in England with the appellant. They never entered a civil partnership. B was conceived by donor insemination before 6 April 2009, so the appellant never became B’s legal parent and never had parental responsibility. After the relationship ended in December 2011 the appellant left the jointly owned home, but contact with B continued and was progressively reduced by the respondent. In late 2013 the respondent secretly decided to move with B to Pakistan, having visited Islamabad in November. On 3 February 2014 she lawfully took B there. On 13 February 2014 the appellant, not yet knowing they were abroad, applied under the Children Act 1989 for leave to apply for shared residence or contact. She later asked the High Court, in its inherent jurisdiction, to make B a ward of court and order her return.
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The courts below
It was common ground that B and the respondent were habitually resident in England before the departure. Hogg J accepted that the respondent genuinely intended a new life in Pakistan and was not motivated by a wish to evade the appellant. She held that B lost her English habitual residence on 3 February 2014, so there was no jurisdiction under the 1989 Act. She also held that the inherent jurisdiction over a British child who was neither habitually resident nor present in England and Wales should be used only in dire and exceptional circumstances, which these were not. The Court of Appeal upheld both conclusions. It proceeded on the basis, not challenged on the further appeal, that the appellant would have no realistic opportunity to pursue her claim in Pakistan.
Habitual residence
Lord Wilson, with whom Lady Hale and Lord Toulson agreed, held that the older expectation of an immediate loss of habitual residence required adjustment. The European concept, now applied in England and Wales, asks whether the place reflects some degree of integration by the child in a social and family environment. The focus is the child’s situation. Parental intention is relevant but not decisive. It is highly unlikely, though conceivable, that a child will have no habitual residence. An old habitual residence is expected to be lost as a new one is gained. Lord Brandon’s statement in In re J, that departure with a settled intention not to return can end habitual residence in a single day, should no longer be regarded as correct. Hogg J had erred in being guided by it and in asking only whether B’s wish to remain in touch with the appellant was enough.
The question was whether by 13 February 2014 B had reached the requisite degree of disengagement from England. Her degree of integration in Pakistan was highly relevant. Features supporting disengagement were the respondent’s role as biological mother, primary carer and sole person with parental responsibility, the lawfulness of the move, B’s knowledge of it, elements of Pakistani heritage, and the respondent’s genuine settling intention and earlier reconnaissance. Stronger features pointed the other way. B had lived all her five years in England, had never been to Pakistan, barely spoke Urdu and was British. The appellant, a central figure, and other close family remained in England. The removal was concealed from the appellant, with whom B had significant emotional links. The English home was unsold. After nine days the pair had only a visa for about three months, temporary lodging with a friend, and neither independent accommodation nor a school place.
Cumulatively those matters compelled the conclusion that B retained habitual residence in England on 13 February 2014. The application under the 1989 Act can and should proceed to substantive determination. The judge might consider joining B, acting by a guardian, and obtaining an independent social worker’s assessment in Pakistan. If a return to England later served B’s interests, the order could require the respondent to bring her back.
The dissent
Lord Sumption, with whom Lord Clarke agreed, would have dismissed the appeal. The legal test is one thing; whether it is satisfied is a question of fact. Hogg J had applied the authorities and permissibly found that habitual residence was lost on departure. Links with a former country can be severed at once, before a new habitual residence is acquired. Where habitual residence cannot be established, jurisdiction may be based on presence, so there is no limbo requiring an artificial rule. Disapproval of the likely response of the Pakistani courts was not a basis for English jurisdiction. The inherent jurisdiction calls for extreme circumspection and must not cut across the statutory limits. The judge’s refusal to exercise it was open to her.
The inherent jurisdiction
The majority’s conclusion on habitual residence made a decision on the inherent jurisdiction unnecessary. Lady Hale and Lord Toulson, with Lord Wilson’s agreement, rejected the view that nationality-based jurisdiction may be used only in cases at the extreme end of the spectrum. Caution remains important, lest the court conflict with an applicable jurisdictional scheme, create conflicting decisions, or make orders that cannot be enforced. Those concerns arguably had little force here. The jurisdiction rests on the duty of allegiance owed by a British child and the child’s entitlement to protection. The Court left the wider issues for another occasion.
Verdict: The Court allowed the appeal by three votes to two. B remained habitually resident in England when the application was made, so the English court could hear it. The Supreme Court did not decide whether B should return or what contact she should have.
