This article was originally published in Solicitors Journal.

Re B in the Supreme Court highlights the complications that arise when abduction is to a foreign jurisdiction, and where same-sex couples are concerned, writes Hetty Gleave

The traditional approach of assessing whether a child has lost or gained habitual residence in a country relied heavily on parental intention at the time of abduction. Following the Supreme Court decision in B [a child] (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 it is clear that parental intention is only one of the factors to be considered. The judgment confirms that the identification of a child’s habitual residence requires analysis of all relevant factors to examine where a child has the greater degree of family and social integration as well as their understanding of the purpose of the move.

This approach is consonant with the European interpretation of habitual residence and criterion set out in the European Court of Justice. The tipping point will occur when the child has achieved the necessary degree of disengagement from their habitual residence in one jurisdiction and become sufficiently integrated in their new home, acquiring a new habitual residence in the new jurisdiction.

This case is particularly interesting as it is the first reported case of abduction by a parent formerly in a same-sex relationship. It concerned a seven-year-old child, conceived through NHS fertility treatment and co-parented by two women. Significantly, the non-biological mother had never applied to become a ‘legal’ parent; however, it was accepted by the court that she had a strong bond with the child, who considered her as another parent. When the parents’ relationship broke down, the biological mother took the child to live in Pakistan, her country of origin, without the other mother’s knowledge or consent.

Ten days after abduction, the left-behind mother issued proceedings in England for a shared residence and contact order, believing the child still to be in the UK. This application depended upon showing that the child was a habitual resident in England at the time the application was issued. It was not until three months later that she discovered the child was actually in Pakistan. She then made further applications to the court for the child to be made a ward of court and returned to England in order to conduct a proper welfare investigation into the circumstances of the child’s removal.

Hague Convention

Pakistan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980, which sets out established procedures by which the left-behind parent can pursue the return of the child. The left-behind mother, therefore, would have had to issue proceedings in Pakistan for a judge in Pakistan to consider a request for return to the UK.

It was argued that, as homosexuality is not recognised socially or legally in Pakistan, which is a Sharia law country, the left-behind mother would have no practical remedy because the courts would not recognise her as a parent. It was even suggested that by making an application in Pakistan she may be placing the child in danger. She could only rely on the courts in this country to provide a remedy.

The Court of Appeal decided the child had lost her habitual residence in this country in the ten days after her abduction. However, it also said that the child had not gained habitual residence in Pakistan in that time period, so in effect the child had no habitual residence. The court refused the left-behind mother’s appeal and the matter was referred to the Supreme Court.

The Supreme Court ruled the child was still habitually resident here ten days after abduction as her connections with this country were still much stronger than with Pakistan at that time.

Psychological parents

This is a welcome development. The court has acknowledged the change in societal attitude to LGBT communities by recognising the strength of the appellant mother’s relationship with the child elevated her have beyond that of a ‘significant person’ in the child’s life, to a ‘psychological’ parent. This decision also sits firmly in line with the accepted orthodoxy that the welfare of the child always remains the court’s paramount consideration.

It seems the English court can now extend its jurisdiction to enable welfare investigations for children living outside the UK. This may be seen as controversial where the child, as in this case, now lives in a Sharia law country. The Supreme Court promoted the rights of the child, as enshrined in European law, above the doctrines and attitudes of the domestic courts of Pakistan.

Whether the order will be enforced by the courts in Pakistan remains to be seen, but it is clear that the English court is not afraid of applying English law principles to retain jurisdiction over a child, even if this conflicts with the norms and practices of the domestic court where the child now lives. It offers a ray of hope to parents who would otherwise find it difficult to pursue proceedings overseas.

Hetty Gleave, Hunters incorporating May, May & Merrimans