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Supreme Court reaffirms protection of British children abroad

Mother 'deprived of her autonomy to choose where to give birth'

11 September 2013

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The High Court has jurisdiction to order a child with British nationality who has never lived in the country to be returned, the Supreme Court has ruled.

Giving the leading judgment in A (Children), deputy president of the Supreme Court Lady Hale held that the court had inherent jurisdiction to return a child, named Haroon in the judgment, from his place of birth in Pakistan to the UK.

As Haroon's mother had been held against her will by her husband in Pakistan, his habitual residence was in the UK along with his three other UK-born siblings.

The parent's marriage had broken down in 2008, the mother moving to a refuge with the three children and complaining of abuse. During a three-week holiday in Pakistan in 2009, she was persuaded by her father, husband and his family to reconcile. She was forced to give up the children's passports.

Contacting the refuge to ask for their help in returning to England, she became pregnant with Haroon in 2010. In May 2011 her family helped her return alone and she lodged proceedings for the return of the children, who were all made wards of the court and the father ordered to return them.

It was held that all four children were habitually resident in England and Wales, and Haroon was habitually resident as the mother had been held against her will in Pakistan.

The High Court allowed the father's appeal in relation to Haroon only. The Supreme Court allowed the mother's appeal, holding that the court has inherent jurisdiction on the basis of the child's nationality.

It remitted the case to the High Court to decide on whether to exercise its jurisdiction to order Haroon to be transferred to the UK.

Julia Thackray, programme director of family law at Central Law Training (CLT) said the decision was an “important one”, but by no means an “open door” for the courts.

The decision that the child’s older siblings were legally ‘habitually resident’ in this country before their removal was relatively straightforward, said Thackray.

“The fourth child, never having lived here, challenges the already complex legal framework for dealing with these cases. The tension lies in the need to define the limits of countries’ jurisdiction so as to facilitate the international return of children on the one hand and on the other the need to be responsive to the welfare of children who are stranded outside of the framework dealing with their siblings.”

While it is outside the main international convention, Pakistan enjoys enjoys a special relationship with England by way of a protocol agreed between the two countries.

“This facilitates the work of judges in returning children who have been removed and it is therefore by no means the most challenging country to deal with in attempting to obtain the return of children.

“The plight of children removed to other non-convention countries remains difficult indeed.”

Reunite International Child Abduction Centre, which specialises in advice, assistance, mediation and research in relation to international child abduction, intervened in support of the mother.

They submitted that, "while there should be no rule that a new-born child takes the habitual residence of the mother, the child's place of birth should carry little weight where the only reason that the child has been born in a particular place is because the mother has been deprived of her autonomy to choose where to give birth."

Lady Hale gave the leading judgment. Lord Wilson, Lord Reed and Lord Toulson agreed with Lord Hughes giving an additional judgment.

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