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Supreme Court grants shared residence for left behind mother

Humane and modern judgment is of huge practical significance, says intervener lawyer

4 February 2016

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The Supreme Court has allowed a majority appeal granting a mother shared residence of her daughter (B) after a long-standing custody battle against the birth mother.

Lord Wilson gave the leading judgment in a case which hinged on whether B had remained 'habitually resident' in the UK when her birth mother took her to live in Pakistan.

The case concerned the family of a 7-year-old child (B) who was taken to live in Pakistan on 3 February 2014 by her birth mother, one of a lesbian couple, after the breakdown of the relationship.

On 13 February 2014, unaware of where B had been taken, the woman 'left-behind' applied for shared residence of B under the Children Act 1989.

The application depended upon B being 'habitually resident' in England at the time it was issued.

The appellant also attempted to make B a ward of the court and have the child returned, on the basis that B was a British national.

Both the High Court and Court of Appeal found B not to be habitually resident on 13 February 2014 and that national jurisdiction could not be exercised because the return of the child was not a sufficiently important issue to justify the use of wardship powers.

Lord Wilson, with Lady Hale and Lord Toulson in agreement, concluded that B had retained habitual residence in England on 13 February 2014 because she had not achieved the requisite degree of disengagement from her English environment.

In reaching his decision, Lord Wilson spoke of the modern concept of habitual residence which requires a new residence to be gained before an old one is lost. He highlighted various factors that helped him apply this reasoning, including B having only lived in England; her inability to speak Urdu; several close members of her family remained in England, and that B had not been registered at a school in Pakistan.

Dissenting justices Lord Sumption and Lord Clarke argued that a person should be considered no longer habitually resident in a country once they leave to live permanently elsewhere.

On the issue of whether inherent jurisdiction could have been exercised, Lord Wilson left open the question as to its applicability after the majority decision had been given.

Farrer & Co partner, Simon Bruce, who acted for Reunite International Child Abduction Centre, an intervener in the case, said: 'This judgment is of huge practical significance - and is a remarkably humane and modern judgement. The court has sent out a message that a parent with sole legal rights will no longer succeed in avoiding proceedings by abducting a child.

'The child's pre-existing habitual residence will rarely be lost until a new habitual residence has been gained. In a case involving unilateral action by an abducting parent, this is unlikely to be accomplished instantaneously but will require a period of time to elapse.'

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