When children are abducted or retained in another country which is not their “home”, it is often necessary to take court action to obtain an order for the return of the children. In order to do this, the Court must be satisfied that it has jurisdiction to deal with the case which is determined by establishing whether the children are habitually resident in England and Wales. If it is determined that the children are habitually resident in another country, for example Pakistan, then it is the Pakistani court’s that would have jurisdiction to deal with the matter and an application would need to be made there.
The Judgment in this new case is eagerly awaited but for now, let’s consider the facts.
The case concerns the habitual residence of a small child, H. Following the parties separation, the mother took her three children (who had been born and raised in England) to Pakistan for a holiday. Whilst she was in Pakistan, the mother was forced to resume the relationship with the father, who had previously returned, and she and the children were prevented from returning to England. A fourth child, H, was subsequently born in Pakistan. Some months later the mother escaped and returned to England without the children. Upon her return she obtained orders for the children to be returned to England, underpinned by a declaration from the Court that all four children were habitually resident in England and were therefore being retained unlawfully in Pakistan.
The father alleged that the English court did not have jurisdiction to deal with this case but this was rejected and the court repeated the order for the children to be returned and reaffirmed the declaration that all four children were habitually resident in England and Wales.
The father appealed. The Court of Appeal found that in respect of the three older children, their place of habitual residence was undoubtedly England and Wales but the court was split in its determination of whether H, the child that had been born in Pakistan, was habitually resident in England and Wales. Lord Justice Patten concluded that he did not accept the construction of a rule that new born babies could be presumed to take on the habitual residence of the custodial parent. He disapproved the decision of B v H in which Charles HJ held that a child was habitually resident in England and Wales even though he had never been there. Lord Justice Patten stated that he could not envisage any case in which a finding of residence could be factually justified in respect of a child who was born and remained abroad. Lord Justice Thorpe dissented and took the view that H had taken his Mother’s habitual residence at birth. However, Lord Justice Rimmer agreed with Lord Justice Patten and therefore the court held that the orders in respect of H had been made without jurisdiction and must be set aside meaning that the court could only order the return of the three elder children and not their sibling H.
The Supreme Court will now review this decision. This is a very unique case. It appears that there is a conflict in this case between the strict interpretation of the law and a wish to do what is arguably “right”. I understand Lord Patten’s strict interpretation of the law as it is difficult to determine that a child’s place of habitual residence is in a country where he was not born and has never resided. However, this would appear to result in an order where a small child would be separated from his mother and his siblings. I eagerly await the Judgment of the Supreme Court and will provide an update as soon as it is known.
Parental child abduction is unfortunately becoming more common and it is a tremendously distressing time for any parent and child. James Maguire & Co are specialists in parental child abduction. It is also important that if you have concerns that your ex-partner may remove your children from your care it is important to seek legal advice as a matter of urgency as being proactive is far better than being reactive after the event.
James Maguire & Co is a specialist firm of Family Law and Divorce Law solicitors based in Wilmslow, Cheshire. We offer legal advice to parties going through a divorce including the financial issues which flow from this and children matters including child maintenance.
We can also advise on Schedule1 Children Act 1989 applications. We advise clients in the Wilmslow area and also to the surrounding areas of Alderley Edge, Bramhall, Hale, Altrincham, Manchester and the North West. We are also able to act for clients nationally and internationally subject to the jurisdiction of England and Wales. For advice please contact James Maguire by telephone +44 (0) 1625 529456 or by email james.maguire@family-law.