Gay couple's international custody battle to be decided by Supreme Court

The Supreme Court will consider the complex issues of habitual residence, the definition of parenthood, and the power of the courts to make orders about British nationals resident overseas when hearing an international child custody dispute this week.

Expedited by the Supreme Court after hearings at the Court of Appeal in January and May 2015, the custody battle is significant both for the parties involved and its potential impact on family law worldwide.

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

The child was conceived by IVF using sperm from an anonymous donor.

The woman 'left-behind' in the UK attempted to make P a ward of the court and have the child returned, on the basis that P was a British national.

She also argued that the child was habitually resident in England when she began proceedings under the Children Act.

In the High Court, though, P was found not to be habitually resident on 13 February 2014. The judge also said the court should not exercise the national jurisdiction because the return of the child was not a sufficiently important issue to justify the use of wardship powers.

A subsequent appeal was dismissed with the court noting that the issue of habitual residence had been dealt with in line with the authorities.

However, Pakistan's attitude to homosexuality effectively means the only forum to resolve the issue is in England and Wales.

The president of the Family Division, Sir James Munby, noted the widespread, pervasive, societal, and state discrimination against both gay men and women in the country.

The official view in Pakistan seems to be that same-sex relationships involve 'abnormal sexual behaviour' leaving the appellant without recourse to its courts.

Simon Bruce, a partner at Farrer & Co, acting for Reunite International Child Abduction Centre, an intervener in the case, said: 'I am really pleased that the case has been expedited to the Supreme Court, as there are issues of huge significance affecting increasing numbers of families becoming more internationally mobile.'

Matthew Rogers is an editorial assistant at Solicitors Journal matthew.rogers@solicitorsjournal.co.uk | @sportslawmatt