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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> B (A child), Re [2016] UKSC 4 (3 February 2016) URL: http://www.bailii.org/uk/cases/UKSC/2016/4.html Cite as: [2016] UKSC 4, [2016] 2 FCR 307, [2017] 1 All ER 899, [2016] 1 FLR 561, [2016] WLR(D) 52, [2016] 2 WLR 557, [2016] AC 606, [2016] Fam Law 298 |
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[2016] UKSC 4
On appeal from: [2015] EWCA Civ 886
JUDGMENT
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Sumption
Lord Toulson
JUDGMENT GIVEN ON
3 February 2016
Heard on 8 and 9 December 2015
Appellant David Williams QC Alistair Perkins Michael Gration Mehvish Chaudhry (Instructed |
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![]() William Tyler QC Hannah Markham Miriam Carrion ![]() (Instructed |
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Intervener
( ![]() Richard Harrison QC Madeleine ![]() Jennifer Perrins (Instructed |
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Intervener (The International Centre for Family Law Policy and Practice) Henry Setright QC Hassan Khan Dorothea Gartland Katy Chokowry (Instructed |
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Intervener (The AIRE Centre) Deirdre Fottrell QC Michael Edwards |
LORD WILSON (with whom Lady Hale and Lord Toulson agree):
INTRODUCTION
1.
It has been
hard-wired into the mind of many family lawyers in England
and Wales that, were a parent to
remove
a
child
from a state in which they were
habitually
resident
to another state with the settled intention that they would
cease to
reside
in that first state and make their home in that second state,
the
child
would
be
likely to lose habitual
residence
in the first state
immediately upon the
removal
and, until later acquiring habitual
residence
in
the second state, would
be
likely not to
be
habitually
resident
anywhere. The
absence of habitual
residence
anywhere places a
child
in a legal limbo. The
main question raised
by
this appeal, which arguably the lower courts were not
free to answer, is whether the expectation of family lawyers about the point
at which habitual
residence
is lost
requires
adjustment in the light of
this court’s
recent
adoption of the European concept of habitual
residence.
The
court’s answer to this question should enable it to determine whether the lower
courts were correct to conclude that, on the
relevant
date, the
child
at the
centre of this appeal was in the limbo to which I have
referred.
2.
The child
is
B,
a girl, who was
born
in April 2008 and so is now aged
seven. The women who are the two central parties to this appeal were living in
England in a same-sex
relationship
from 2004 to 2011. Other than
biologically,
B
is the product of their
relationship.
The
respondent
is the
biological
mother
of
B
and her father is an unknown sperm donor of Asian ethnicity. The appellant
has strong claims also to
be
described as a mother. Nevertheless, in order to
avoid confusion, it is
better
to
refer
to the central parties as the appellant
and the
respondent
respectively.
3.
The appellant, who continues to live in England, is a British
national, aged
35, of Indian ethnicity. The
respondent
is a
British
national, aged 45, of
Pakistani ethnicity.
B,
likewise, is a
British
national. On 3 February 2014 the
respondent
took
B
to live in Pakistan, where they have
remained
ever since. On
13 February 2014, aware that the
respondent
had
removed
B
from her home
but
unaware that she had taken her abroad, the appellant issued an application
under the
Children
Act 1989 (“the 1989 Act”) for leave to apply for what were
then still described as orders for shared
residence
of
B
or for contact with
her. On 6 June 2014, having learnt that the
respondent
had taken her to
Pakistan, the appellant also applied for orders that
B
should
be
made a ward of
court and
be
returned
to England. On 31 July 2014 Hogg J dismissed
both
of the
appellant’s applications: [2014] EWHC 3017 (Fam). And on 6 August 2015 the
Court of Appeal (Sir James Munby P,
Black
and Underhill LJJ),
by
a judgment of
the court delivered
by
Black
LJ, dismissed her appeal: [2015] EWCA Civ 886.
FACTS
4.
In 2000, prior to her relationship
with the appellant, the
respondent
had
begun
to investigate the possibility of her conceiving a
child
by
artificial means and in 2001 she had made unsuccessful attempts to do so. In
2004 their
relationship
began
and they set up home together;
but
they never
entered into a civil partnership. In 2005 and 2006, as a couple, they together
explored that same possibility. At their joint
request,
a licensed hospital
administered two cycles of intrauterine insemination (“IUI”) to the
respondent
but
the treatment was unsuccessful. Then they made a joint application to their
local authority for assessment as potential adopters. Six months later,
however, at the instigation of the appellant, who did not feel
ready
to
be
a
parent, they withdrew their candidacy. Ultimately, in April 2007, they applied
to another licensed hospital for the
respondent
to have further IUI treatment
under the National Health Service. “I see no
reason”,
wrote the counsellor,
“why this couple should not
be
treated”. On this occasion the treatment was
successful and in April 2008
B
was
born.
5.
Shortly prior to B’s
birth
the appellant and the
respondent
had
bought
a
house in their joint names. They lived there together with
B
until December
2011, when in acrimonious circumstances their
relationship
finally
broke
down
and the appellant left.
6.
Upon B’s
birth
the
respondent
gave up work for a year. The appellant
took two weeks of “paternity leave” and a further two weeks of holiday,
whereupon she
resumed
full-time employment. Most of
B’s
care was undertaken
by
the
respondent
but,
when she got home, the appellant helped to care for her,
for example to give her a
bath
and put her to
bed;
and at weekends, as
co-parents, they took
B
out, in particular to visit members of their families. Living
within easy
reach
of them were the appellant’s parents, the
respondent’s
parents and her two sisters, together with various young cousins of
B.
She
became
close to these
relations,
who all
remain
resident
in England today. When
in 2009 the
respondent
resumed
work, the appellant’s parents looked after
B
for
two days each week
but,
when she
began
to attend a nursery, their care of her
was
reduced
to one day each week. When she
began
to talk,
B
began
to call the
respondent
“mama” and the appellant “mimi”. On
behalf
of
B,
the
respondent
wrote Mother’s Day cards to the appellant; on one of them she wrote “I can’t
believe
how lucky I am to have you as my Mama”.
7.
Following her departure from the family home, the appellant continued to
pay half the mortgage instalments referable
to it and to make other payments
which she describes as for
B’s
maintenance and which the
respondent
describes
as her continuing contribution to utility
bills.
The
respondent
accuses the
appellant of withdrawing from many aspects of parenting, for example in
relation
to
B’s
schooling;
but
on any view the appellant pressed for contact
with
B
and on any view the
respondent
was to some extent
resistant
to it. Over
the following two years the
respondent
progressively
reduced
the level of the
appellant’s contact with
B
- from six hours every week in the first few months,
to three hours every fortnight in the following year and then to only two hours
every three weeks in the year prior to the move to Pakistan.
8.
The appellant was not content with the reduction
in her contact with
B,
nor with the ostensible difficulties placed
by
the
respondent
in the way of her
seeing
B
on a number of the pre-arranged days.
Bad-tempered
emails passed
between
them.
By
November 2012 the appellant was inviting the
respondent,
albeit unsuccessfully, to join her at family mediation. Then, in October 2013,
the appellant wrote to the
respondent
a letter
before
action. She expressed
concern about the effect on
B’s
emotional wellbeing of the minimal contact
which the
respondent
had allowed to take place
between
them and she invited her
to consent to a shared
residence
order, pursuant to which
B
would stay with the
appellant on three nights each fortnight and for further periods during school
holidays. The
respondent
does not appear to have
replied
to the letter.
9.
Meanwhile the respondent
had
begun
privately to consider whether to take
B
to live in Pakistan, where, according to her, certain unidentified members of
her wider family
remain.
In June 2013 she had
been
made
redundant
and life had
become
particularly difficult for her. In November 2013 she went alone to
Islamabad and there she discussed with a friend the possibility of entry into a
business
partnership with him and looked at a possible school for
B.
In December
2013, following her
return
to England, the
respondent
secretly decided to move
there with
B
as soon as possible.
10.
Also in December 2013 the respondent
took
B
on holiday to Morocco. On
the first occasion of contact following their
return
B
handed a Moroccan card
to the appellant. On the card
B
had written “To mimi I missed you so much love
[
B]”
and she had drawn hearts and kisses.
11.
At around that time the respondent
at last agreed to attend a mediation
session with the appellant. It took place on 15 January 2014. The
respondent
made no mention of her imminent departure with
B
to Pakistan and it is hard to
avoid the conclusion that the session was a charade. It was agreed that the
next session would take place on 5 February 2014.
12.
The last occasion of direct contact between
the appellant and
B
took
place on 26 January 2014. According to the appellant,
B
told her that she was
moving and that she was scared that the appellant would not
be
able to find
her.
13.
The next occasion of contact was fixed to take place three weeks later,
namely on 16 February 2014. Late in January, by
email, the appellant asked the
respondent
to agree to change the date. There was no
reply.
On 7 February the
appellant sent a further email. It
bounced
back.
The appellant discovered that
the
respondent’s
facebook and twitter pages had
been
closed. Then, on 8
February, the appellant
received
a letter from the
respondent.
It had
been
posted
by
someone in England on 6 February. In it the
respondent
gave no
indication of the whereabouts of herself and
B.
She wrote “I’ve enclosed the
house key as I have now moved … our communication has
been
so strained and
stressful … I will
be
in touch in a few weeks, once we settle, to establish
what you have decided to do about the house”.
14.
The respondent’s
removal
of
B
to Pakistan on 3 February 2014 was lawful.
The absence of the appellant’s consent did not vitiate it. The appellant has
never
been
B’s
legal parent. Had the insemination which led to
B’s
conception
occurred after 6 April 2009, and had the
respondent
so agreed in writing, the
appellant would have
been
treated in law as
B’s
parent: sections 43 and 44 of
the Human Fertilisation and Embryology Act 2008. Had she thereupon
been
registered
as a parent, the appellant would also have acquired parental
responsibility
for
B:
section 4ZA(1)(a) of the 1989 Act. Alternatively, if the appellant had
secured a shared
residence
order
referable
to
B
prior to 3 February 2014, she
would have acquired parental
responsibility
for her under the former version of
section 12(2) of the 1989 Act. In the event, however, she never had parental
responsibility
for
B.
15.
Later the respondent
was to give the following evidence, which Hogg J
accepted, about the circumstances of herself and
B
in Pakistan in the weeks
following their arrival on 4 February 2014:
(a)
she arrived in Islamabad on a visa which entitled her to remain
with
B
in Pakistan for about three months;
(b)
style='font:7.0pt "Times New Roman"'>
she stayed with
B
in the home of her potential
business
partner for
about the first three weeks;
(c)
on 10 February she began
working in partnership with him;
(d)
on 18 February she registered
B
at an English-speaking school (
being
other than the one which she had previously considered), at which on the
following day
B
began
to attend;
(e)
on 19 February she entered into an agreement to rent
a two
bedroom
flat
for one year with effect from 1 March;
(f)
on (presumably) 1 March she moved with B
into the flat; and
(g)
on 18 April she was issued with a National Identity Card which entitled
her to reside
with
B
in Pakistan indefinitely.
16.
On 24 July 2014, five days before
the
beginning
of the hearing
before
Hogg J, the appellant spoke to
B
by
telephone. Since then there have
been
five
further occasions of contact
by
telephone. No other contact has taken place
between
them since the move to Pakistan.
PROCEEDINGS
17.
When on 13 February 2014 the appellant issued her application under the
1989 Act, she remained
unaware of
B’s
whereabouts so she also issued an
application under section 33 of the Family Law Act 1986 for orders that
specified public authorities should disclose to the court all their information
relating
to
B’s
whereabouts. An order was made against the
Child
Benefit
Office
but
it yielded no
relevant
information. In April 2014, still unaware of the
whereabouts of the
respondent
and
B,
the appellant secured an order for
substituted service of her applications upon the
respondent,
namely
by
post to
the address of her parents. The
respondent
says that in his mind her father had
somehow
been
able to avoid directly confronting her sexuality, her intimate
relationship
with the appellant and the circumstances of
B’s
conception; and
that, when he opened the envelope, he was deeply shocked and angry about what
he perceived to
be
the
respondent’s
dishonour of the family. There may well
be
grounds for criticising the appellant for having invited the court to order
that the substituted service should
be
at the parents’ address as opposed, for
example, at the address of one of the
respondent’s
sisters. At all events the
service led to the
respondent’s
instruction of English solicitors who, on 9 May
2014, informed the appellant’s solicitors that the
respondent
and
B
had gone to
Pakistan. Later the
respondent
divulged that she and
B
were in Islamabad
but,
for
reasons
unexplained to the court, she has never disclosed their precise
address there.
18.
The appellant’s belated
discovery that
B
was abroad led her, on 6 June
2014, to issue a further application, namely for orders to
be
made
by
the High
Court in the exercise of its inherent jurisdiction over
B,
as a
British
subject, that she
be
made a ward of court and
be
at once
brought
back
to
England. On 9 June 2014, apprised of the fact that the
respondent
disputed the
court’s jurisdiction to make any of the orders sought
by
the appellant, Moylan
J directed that the issue of jurisdiction
be
determined at a hearing
beginning
on 29 July 2014 and he ordered that the
respondent
should attend it in person.
By
a
recital
to his order, Moylan J also invited the
respondent
to
reflect
upon
the practical availability of any forum, other than in England and Wales, in
which she and the appellant might safely and
realistically
resolve
their disputes.
In due course, having presumably
reflected
upon it, the
respondent
averred that
the correct jurisdiction in which to raise any issues in
relation
to
B
was that
of Pakistan.
19.
Four days before
the hearing fixed to
begin
on 29 July 2014, Peter
Jackson J heard an application
by
the
respondent
to vary the order that she
should attend it in person. She asserted that her father had
been
so outraged
by
what he had learnt from the court documents as to have threatened to
break
her legs and that, were she to come to England, she would
be
at risk of
physical harm, perhaps even of death, at his hands or at those of the local
community. Instead the
respondent
offered to give evidence at the substantive
hearing
by
video-link. On the undertaking of the appellant not to inform the
respondent’s
family that the hearing was about to take place, the judge
refused
the
respondent’s
application and made a further order for her attendance in
person. Nevertheless the
respondent
refused
to comply with the orders for her
attendance
before
Hogg J in person. She did not even give evidence to her
by
video-link. She gave evidence only
by
telephone.
20.
On 31 July 2014, following receipt
of evidence
relevant
to jurisdiction
from the appellant in the witness
box
as well as from the
respondent
by
telephone, Hogg J gave judgment. It was, as she noted, common ground that prior
to 3 February 2014 the
respondent
and
B
had
been
habitually
resident
in England.
Notwithstanding her inability to have observed the
respondent
during
cross-examination about her motives, Hogg J found that, when departing for
Pakistan on that date, the
respondent
had genuinely intended to make a new life
for herself and for
B
there and that her motivation had not
been
to evade the
appellant’s increasing demands to
be
allowed to play a fuller role in
B’s
life.
So she held that the
respondent
had thereupon lost her own habitual
residence
in England. She accepted that the appellant had
been
a significant person in
B’s
life, particularly prior to the
breakdown
of the
relationship
between
the
two women; that the appellant still had much to offer
B;
and that
B
had said
that she would miss the appellant and had wished to
remain
in touch with her.
But,
asked Hogg J, was
B’s
wish to
remain
in touch with the appellant enough to
sustain a continuation of her habitual
residence
in England? Her answer was no.
Accordingly she held that
B
had also lost her English habitual
residence
on 3
February 2014 and thus that the court had no jurisdiction to determine the
application issued
by
the appellant on 13 February 2014 pursuant to the 1989
Act. It was nevertheless probable, observed the judge, that neither the
respondent
nor
B
had acquired habitual
residence
in Pakistan
by
that date.
21.
Then Hogg J addressed the appellant’s application for the exercise of
her inherent jurisdiction over B
as a
British
subject. She noted the
appellant’s central contention that, in the light of society’s attitude in
Pakistan towards homosexual acts, she would not
be
able even to present her
case, as a same-sex parent, to the courts there; and the appellant’s wider
contentions that, as a lesbian, the
respondent
was putting herself and
B
at
risk
by
living in Pakistan and that, while
B
needed in due course to develop a
fuller understanding of the circumstances of her conception and early home
life, she would, were the
respondent
to have told her the truth about them, put
herself at risk even
by
speaking about them in Pakistan. The judge, however,
accepted that the
respondent
was well aware of the difficulties which would
attend her entry into a same-sex
relationship
in Pakistan. The judge held that
the jurisdiction over a
British
subject who was neither habitually
resident
nor
present in England and Wales should
be
exercised only if the circumstances of
the case were “dire and exceptional” and that those of the present case did not
so qualify.
22.
“This case before
me”, concluded Hogg J, “is at heart one of ‘contact’
in the old-fashioned terminology and about making arrangements for seeing a
significant person in [
B’s]
life”. Then she observed that, had the
respondent
made an application for permission to
remove
B
to Pakistan, it would have stood
a very good chance of success and that there would have
been
plans, if not
orders, for the appellant to have indirect contact. With
respect
to Hogg J,
others might attribute a somewhat lower chance of success to the
respondent’s
hypothetical application; and counsel have
been
unable satisfactorily to
explain the judge’s apparent suggestion that the extent of
B’s
contact with the
appellant for which the court would have provided would have
been
no more than
indirect.
23.
In the appellant’s appeal to the Court of Appeal against the orders of
Hogg J the Reunite
International
Child
Abduction Centre (“
Reunite”)
was
permitted to intervene.
By
its judgment, the court concluded that Hogg J had
been
entitled to hold that on 3 February 2014
B
had lost her English habitual
residence.
It also concluded that, although the attenuation, or even the
ultimate loss, of her
relationship
with the appellant would
be
a
real
detriment
to
B,
the circumstances were not so exceptionally grave as to justify exercise
of the inherent jurisdiction
by
reference
to her nationality.
24.
The Court of Appeal correctly observed that there was no direct evidence
to substantiate the appellant’s asserted inability to present her case to the
courts of Pakistan. But
it surveyed a mass of general material about the
attitude of society in Pakistan to same-sex
relationships
and concluded from it
that, although the issue of sexual
relations
between
women was unexplored
territory in law, there was in Pakistan pervasive societal and state
discrimination, social stigma, harassment and violence against
both
gay men and
lesbian women, together with a lack of effective protection
by
the state
against the activities of non-state actors. So the Court of Appeal proceeded on
the
basis
- not challenged
by
the
respondent
in the course of this further
appeal - that courts in Pakistan would
be
unlikely to
recognise
that the
appellant had any
relationship
with
B
which would entitle her to
relief
and
that therefore she would have no
realistic
opportunity to advance her claim
there.
CONSEQUENCE
25.
The consequence of the conclusions reached
in the lower courts, in
both
of them
by
judges of great experience in the field of family law, is that
applications intended to secure for
B
a continuing
relationship
with the woman
who, with the
respondent’s
consent, has acted as one of her parents and who,
even for the two years following the separation, managed to maintain a
significant, loving presence in her life have
been
dismissed without any
appraisal of
B’s
welfare; without any knowledge of her current situation;
without any collection of her wishes and feelings; and in circumstances in
which no such applications can
be
entertained in any other court.
26.
Is it correct that, by
the clandestine
removal
of her to Pakistan, the
respondent
has placed
B’s
interests
beyond
all judicial oversight? The Court of
Appeal’s affirmative answer is arresting. It demands this court’s close
scrutiny.
HABITUAL RESIDENCE
(a) Principle
27.
A child’s
habitual
residence
in a state is the internationally
recognised
threshold to the vesting in the courts of that state of jurisdiction
to determine issues in
relation
to him (or her). Article 8 of Council
Regulation
(EC) No 2201/2003 (“
Regulation
B2R”)
provides that the courts of an
EU state shall have jurisdiction in matters of parental
responsibility
over a
child
habitually
resident
there at the time when the court is seised.
By
way of
exception, article 12 confers jurisdiction on a state which has other links
with the
child
but
only where the parties have accepted its jurisdiction. Article
13 provides that, where a
child’s
habitual
residence
cannot
be
established
(which means where the
child
is not habitually
resident
in any EU state) and
where article 12 does not apply, jurisdiction vests in the courts of the state in
which the
child
is present. Article 14, entitled “
Residual
jurisdiction”
provides that, where no court of a member state has jurisdiction under the
preceding articles, jurisdiction shall
be
determined
by
the laws of each state.
28.
A child’s
habitual
residence
is also the thread which unites the
provisions of the Hague Convention on the Civil Aspects of International
Child
Abduction 1980 (“the 1980 Convention”). This Convention applies to a
child
habitually
resident
in a contracting state immediately
before
his wrongful
removal
or
retention:
article 4. It is the law of that state which dictates whether his
removal
or
retention
was wrongful: article 3(a). It is that state to which,
subject to exceptions, other contracting states must order the
child
to
be
returned:
article 12. Under the Hague Convention on Jurisdiction etc 1996 it
is, again, the courts of the contracting state of the
child’s
habitual
residence
which, as against other contracting states, has jurisdiction to make
orders for his protection: article 5(1).
29.
Regulation
B2R
extends
beyond
the identification of jurisdiction as
between
EU states themselves. It
binds
each EU state irrespective of whether
the other state with potential jurisdiction is an EU state. Thus the Family Law
Act 1986 (“the 1986 Act”) now provides,
by
section 2(1)(a), that an order under
section 8 of the 1989 Act may
be
made only if the court has jurisdiction under
Regulation
B2R
or if other conditions, irrelevant for present purposes, are
satisfied.
By
her application issued on 13 February 2014 the appellant applied
for leave to apply for orders under section 8 of the 1989 Act and the
result
is
that the court has jurisdiction to determine her application only if
B
was
habitually
resident
in England and Wales on the date of its issue.
30.
Two consequences flow from the modern international primacy of the concept
of a child’s
habitual
residence.
The first is that, as
Reunite
submits to this
court and as the
respondent
broadly
accepts, it is not in the interests of
children
routinely to
be
left without a habitual
residence.
In that event the
machinery of international instruments designed to achieve an orderly
resolution
of issues
relating
to them does not operate as primarily intended.
Indeed, if they are unilaterally
removed
from a state in which they were not
habitually
resident,
those aggrieved
by
their
removal
can have no
recourse
to
the 1980 Convention. In In
re
F (A Minor) (
Child
Abduction) [1992] 1 FLR
548, 555,
Butler-Sloss
LJ accepted that for that
reason
it was important that,
where possible, a
child
should have an habitual
residence.
Indeed, in his article
entitled “The Concept of Habitual
Residence”
in the Juridical
Review
1997, p
137, Dr Clive, the great Scottish family law jurist, wrote at p 143 that “with
the increasing importance of habitual
residence
as a connecting factor, it is
not sensible to have a situation in which people are routinely without a
habitual
residence”.
In the absence of the habitual
residence
of
children
anywhere,
Regulation
B2R
provides a fall-
back
jurisdiction
based
on their
presence.
But,
in the context of adult disputes about them, the presence of
children
in a particular state on a particular day is an unsatisfactory
foundation of jurisdiction
because,
by
moving them from one state to another,
one of the adults can so easily invoke a favourable jurisdiction or pre-empt
invocation of an unfavourable one.
31.
The second consequence is that the interpretation in the courts of
England and Wales of the concept of habitual residence
should
be
consonant with
its international interpretation: see the judgment of the Court of Justice of
the European Union (“the CJEU”) in Proceedings
brought
by
A [2010] Fam 42,
para 34. Its traditional interpretation in England and Wales has
been
substantially influenced
by
the stance adopted
by
one or
both
of the parents,
often at the expense of focus on the
child’s
own situation.
By
way of example,
our courts had accepted a proposition that one parent with parental
responsibility
could not achieve a change in the
child’s
habitual
residence
without the consent of the other parent with parental
responsibility:
Re
M
(Abduction: Habitual
Residence)
[1996] 1 FLR 887, 892 E-H and 896
B.
This
court has now held that proposition to
be
wrong: In
re
R (
Children)
[2015] UKSC 35; [2016] AC 760.
By
way of another example, our old law largely
proceeded
by
reference
to a proposition that a
child’s
habitual
residence
would
necessarily follow the habitual
residence
of the parent with whom he lived: see
the discussion of it in In
re
LC (
Children)
[2014] UKSC 1; [2014] AC 1038, para 33.
But
it was held in the LC case, at paras 34 to 37, that
the international interpretation of habitual
residence
required
that
proposition to
be
relaxed.
32.
The present case requires
the court to turn its attention to a third
aspect of the concept of a
child’s
habitual
residence,
namely the circumstances
in which he loses it, and to ask itself whether the longstanding domestic
analysis of those circumstances, yet again heavily dependent on parental
intention, is consonant with the modern international concept.
33.
The domestic analysis to which I have referred
is to
be
found in the
decision of the House of Lords in In
re
J (A Minor) (Abduction: Custody
Rights) [1990] 2 AC 562. The facts have some similarities with those of the
present case although the latter has features which may more strongly militate
against any immediate loss of the
child’s
habitual
residence
upon
removal.
On
21 March 1990 the mother
removed
the
child,
aged two, from Australia, where he
had
been
habitually
resident,
to England with the intention of permanently
residing
here. She did so without the knowledge of the father who also
resided
in Australia
but
who, not having
been
married to the mother, had at that time
no rights of custody in
relation
to the
child.
So the mother’s
removal
of him
was not wrongful within the meaning of the 1980 Convention. On 12 April 1990,
however, an Australian judge conferred rights of custody on the father. So was
the mother’s
retention
of the
child
in England after that date wrongful within
the meaning of the 1980 Convention? It was wrongful only if the
child
had
continued to
be
habitually
resident
in Australia on that date. The appellate
committee held that, while he had not
by
then acquired habitual
residence
in
England, he had lost his habitual
residence
in Australia upon his
removal
three
weeks earlier.
34.
It is well-known that, in giving the only substantive speech in the J
case, Lord Brandon
of Oakbrook made, at pp 578-579, four preliminary points.
The first was that the expression “habitual
residence”
should
be
given its
natural meaning. The second was that an issue about a person’s habitual
residence
in a particular country was one of fact. The fourth, which may
remain
correct notwithstanding the decision in the LC case, was that the
habitual
residence
of a
child
aged only two who was in the sole lawful custody
of his mother would
be
the same as hers. It is the validity of Lord
Brandon’s
third point, for which he cited no authority, that is central to the present appeal.
Hogg J quoted it in full. Lord
Brandon
said:
“The third point is that there is
a significant difference between
a person ceasing to
be
habitually
resident
in
country A, and his subsequently
becoming
habitually
resident
in country
B.
A
person may cease to
be
habitually
resident
in country A in a single day if he
or she leaves it with a settled intention not to
return
to it
but
to take up
long-term
residence
in country
B
instead. Such a person cannot, however,
become
habitually
resident
in country
B
in a single day. An appreciable period of time
and a settled intention will
be
necessary to enable him or her to
become
so. During that appreciable period of time the person will have ceased to
be
habitually
resident
in country A
but
not yet have
become
habitually
resident
in
country
B.”
In the light of his third and fourth points Lord Brandon
concluded as follows:
“The mother had left Western
Australia with a settled intention that neither she nor J should continue to be
habitually
resident
there. It follows that immediately
before
22 March
1990, when the
retention
of J in England
by
the mother
began,
both
she and J
had ceased to
be
habitually
resident
in Western Australia.” (emphasis supplied)
35.
The analysis by
the CJEU of the concept of a
child’s
habitual
residence
is located in its judgments in Proceedings
brought
by
A, cited in para
31 above, and in Mercredi v Chaffe [2012] Fam 22.
36.
In Proceedings brought
by
A the issue for determination in
Finland was whether
children
taken into care in November 2005 had then
been
habitually
resident
there. They had lived with their mother in Sweden for four
years until the summer of 2005, when they had
returned
to Finland, where they
had lived on campsites and not
been
sent to school. The court’s ruling, at p
69, was as follows:
“2. The concept of ‘habitual
residence’
under article 8(1) of [
Regulation
B2R]
must
be
interpreted as
meaning that it corresponds to the place which
reflects
some degree of
integration
by
the
child
in a social and family environment. To that end, in
particular the duration,
regularity,
conditions and
reasons
for the stay on the
territory of a member state and the family’s move to that state, the
child’s
nationality, the place and conditions of attendance at school, linguistic
knowledge and the family and social
relationships
of the
child
in that state
must
be
taken into consideration.”
The court had also suggested, at para 40, that the
intention of the parents to settle permanently with the child
in another member
state, manifested
by
certain tangible steps such as the purchase or lease of a
residence
there, might indicate what, perhaps significantly, the court chose to
describe as a “transfer” of habitual
residence.
37.
In the Mercredi case the issue for determination in England and
Wales was whether a baby
aged two months, lawfully
removed
by
the French mother
from the UK to La Réunion,
remained
habitually
resident
here five days later
when the English court
became
seised of the
British
father’s application. The
CJEU carefully followed its ruling in Proceedings
brought
by
A
but,
by
reference
to the different facts, chose also to stress, at paras 53 and 56,
that the analysis of the social and family environment of a pre-school
child
would differ from that of a school-age
child
and would include consideration of
the geographic and family origins of the parent who had effected the move and
of the family and social connections of that parent and the
child
with the
state to which they had moved.
38.
In A v A (Children:
Habitual
Residence)
[2013] UKSC 60; [2014] AC 1, this court held that the criterion articulated in the two European
authorities (“some degree of integration
by
the
child
in a social and family
environment”), together with the non-exhaustive identification of
considerations there held to
be
relevant
to it, governed the concept of
habitual
residence
in the law of England and Wales: para 54(iii) and (v) of
Lady Hale’s judgment, with which all the members of the court (including Lord
Hughes at para 81) agreed. Lady Hale said at (v) that the European approach was
preferable to the earlier English approach
because
it was “focussed on the
situation of the
child,
with the purposes and intentions of the parents
being
merely one of the
relevant
factors”.
39.
It is worthwhile to note that the new criterion requires
not the
child’s
full integration in the environment of the new state
but
only a degree of it.
It is clear that in certain circumstances the
requisite
degree of integration
can occur quickly. For example article 9 of
Regulation
B2R,
the detail of which
is irrelevant, expressly envisages a
child’s
acquisition of a fresh habitual
residence
within three months of his move. In the J case, cited above,
Lord
Brandon
suggested that the passage of an “appreciable” period of the time
was
required
before
a fresh habitual
residence
could
be
acquired. In Marinos
v Marinos [2007] EWHC 2047 (Fam); [2007] 2 FLR 1018, para 31, Munby J
doubted whether Lord
Brandon’s
suggestion was consonant with the modern
European law; and it must now
be
regarded
as too absolute. In A v A,
cited above, at para 44, Lady Hale declined to accept that it was impossible to
become
habitually
resident
in a single day.
40.
But
do the two European authorities assist in identifying the object of
central
relevance
to this appeal, namely the point at which habitual
residence
is lost?
42.
The first is indirect. Recital
12 to
Regulation
B2R
states:
“The grounds of jurisdiction in
matters of parental responsibility
established in the present
Regulation
are
shaped in the light of the
best
interests of the
child,
in particular on the
criterion of proximity.”
By
proximity, “the court clearly meant the practical
connection
between
the
child
and the country concerned”: Lord Hughes in A v
A, cited above, at para 80(ii). In its analysis of the concept of habitual
residence
the CJEU,
both
in Proceedings
brought
by
A at para 35 and in
the Mercredi case at paras 46 and 47, stressed the significance of
recital
12. Of course it does not follow that the court can construe a
child’s
habitual
residence
by
reference
to the
result
which
best
serves his interests.
The effect of the
recital
is more subtle and more limited yet nevertheless
significant: where interpretation of the concept of habitual
residence
can
reasonably
follow each of two paths, the courts should follow the path
perceived
better
to serve the interests of
children.
Or, to
be
more specific to
the facts of the present case: if interpretation of the concept of habitual
residence
can
reasonably
yield
both
a conclusion that a
child
has an habitual
residence
and, alternatively, a conclusion that he lacks any habitual
residence,
the court should adopt the former.
43.
The second is arrestingly direct. In her Opinion in Proceedings
brought
by
A Advocate General Kokott said:
“45. It is also conceivable in
exceptional cases that during a transitional stage there will no longer be
habitual
residence
in the former state while the status in the new state has
not yet crystallised into habitual
residence.
Precisely for such a case,
article 13 of [
Regulation
B2R]
confers a
residual
jurisdiction on the courts of
the member state in which the
child
is present.”
In its judgment in the same case the court said:
“43. However, it is
conceivable that at the end of [the integration] assessment it is impossible to
establish the member state in which the child
has his habitual
residence.
In
such an exceptional case, and if article 12 ... is not applicable, the national
courts of the member state in which the
child
is present acquire jurisdiction
... pursuant to article 13(1) ….”
The court’s reference
to a situation in which it is
“impossible to establish” the
child’s
habitual
residence
might at first sight
seem ambiguous. Is it
referring
to a situation in which the
child
has an
habitual
residence
somewhere
but
the evidence does not enable the court to
identify the state in which he has it? The answer is clearly no. The court is
referring
to a situation in which a
child
has no habitual
residence.
The court is
expressly indorsing para 45 of the Advocate General’s Opinion (note its
repetition
of her words “conceivable” and “exceptional”)
but
is
recasting
her
point within the slightly ambiguous language of article 13 of
B2R,
namely
“where a
child’s
habitual
residence
cannot
be
established”.
44.
In A v A, cited above, Baroness
Hale, at para 54(viii),
referred
to para 45 of the Advocate General’s Opinion and to para 43 of the court’s
judgment in Proceedings
brought
by
A and observed that it was “possible”
for a
child
to have no habitual
residence.
Lord Hughes, at para 80(ix),
indorsed the European court’s conclusion
by
saying that the circumstances in
which a
child
had no habitual
residence
would
be
“exceptional”.
45.
I conclude that the modern concept of a child’s
habitual
residence
operates in such a way as to make it highly unlikely, albeit conceivable, that
a
child
will
be
in the limbo in which the courts
below
have placed
B.
The
concept operates in the expectation that, when a
child
gains a new habitual
residence,
he loses his old one. Simple analogies are
best:
consider a see-saw.
As, probably quite quickly, he puts down those first roots which
represent
the
requisite
degree of integration in the environment of the new
state, up will probably come the
child’s
roots in that of the old state
to the point at which he achieves the
requisite
de-integration (or,
better,
disengagement) from it.
46.
One of the well-judged submissions of Mr Tyler QC on behalf
of the
respondent
is that, were it minded to
remove
any gloss from the domestic
concept of habitual
residence
(such as, I interpolate, Lord
Brandon’s
third
preliminary point in the J case), the court should strive not to
introduce others. A gloss is a purported sub-rule which distorts application of
the rule. The identification of a
child’s
habitual
residence
is overarchingly a
question of fact. In making the following three suggestions about the point at
which habitual
residence
might
be
lost and gained, I offer not sub-rules
but
expectations which the fact-finder may well find to
be
unfulfilled in the case
before
him:
(a)
the deeper the child’s
integration in the old state, probably the less
fast his achievement of the
requisite
degree of integration in the new state;
(b)
style='font:7.0pt "Times New Roman"'>
the greater the amount of adult pre-planning of the move, including
pre-arrangements for the
child’s
day-to-day life in the new state, probably the
faster his achievement of that
requisite
degree; and
(c)
were all the central members of the child’s
life in the old state to
have moved with him, probably the faster his achievement of it and, conversely,
were any of them to have
remained
behind
and thus to
represent
for him a
continuing link with the old state, probably the less fast his achievement of
it.
47.
Lord Brandon’s
third preliminary point in the J case, set out in
para 34 above, should no longer
be
regarded
as correct; and Hogg J fell into
error in
being
guided
by
it. As exemplified
by
the terms in which Lord
Brandon
applied it to the facts of that case, also set out in para 34, his analysis of
a
child’s
habitual
residence
afforded to parental intention a dispositive
effect inconsistent with the
child-focussed
European concept now adopted in
England and Wales; and the
result
of his analysis was to consign a large number
of
children
to the limbo of lacking any habitual
residence
in circumstances in
which the modern law expects such a
result
to
be
exceptional, albeit
conceivable. It is nevertheless fruitless to inquire whether the conclusion of
the appellate committee about the
child’s
loss of habitual
residence
in
Australia within three weeks of his move would
remain
valid today.
(b)
Application
48.
It follows that, in asking whether B’s
wish to
remain
in touch with the
appellant was enough to sustain a continuation of her habitual
residence
in
England on 13 February 2014, Hogg J should now
be
seen to have asked herself
far too narrow a question. The question is whether
B
had
by
then achieved the
requisite
degree of disengagement from her English environment; and highly
relevant
to the answer will
be
whether she had
by
then achieved the
requisite
degree of integration in the environment of Pakistan.
49.
In my opinion each of the following factors might contribute to a
conclusion that B
had
by
that date achieved the
requisite
degree of
disengagement from her English environment:
(a)
B
went to Pakistan with the
respondent,
who was her
biological
mother,
her primary carer and the person who alone had parental
responsibility
for her;
(b)
style='font:7.0pt "Times New Roman"'>
B’s
removal
to Pakistan was lawful;
(c)
B
knew that she was going to live in Pakistan;
(d)
part of B’s
ethnic heritage was in Pakistan and certain members of her
wider family, albeit unidentified, apparently
remain
living there;
(e)
the respondent
took
B
to Pakistan in the genuine
belief
that they would
have a
better
life there and with the intention that they would settle there;
and
(f)
two months earlier the respondent
had conducted a
reconnoitre
of
possible arrangements for their future life in Islamabad.
50.
In my opinion each of the following factors might contribute to a
conclusion that B
had not
by
that date achieved the
requisite
degree of
disengagement from her English environment:
(a)
B
had lived in England throughout the five years of her life;
(b)
style='font:7.0pt "Times New Roman"'>
she had never previously set foot in Pakistan;
(c)
her language was English and she barely
spoke Urdu;
(d)
she was a British
subject;
(e)
the appellant, who was a central figure in B’s
life, indeed probably the
second most important figure, had
been
left
behind
in England;
(f)
B’s
removal
was effected without the appellant’s knowledge, still less
approval;
(g)
B
was aware that her
removal
was to
be
kept secret from the appellant;
(h)
B
retained
significant emotional links with the appellant and feared
that she would miss her following the move to Pakistan;
(i)
other important adult figures in B’s
life, in particular
both
sets of
grandparents and two aunts, together with various young cousins, had also
been
left
behind
in England;
(j)
the home in which B
had lived throughout her life had not
been
sold and
remained
available for her immediate
re-occupation
with the
respondent;
(k)
by
13 February 2014
B
had
been
present in Pakistan for only nine days;
(l)
at that time she and the respondent
had the right to
remain
there for
only about three months;
(m)
they were then staying temporarily with a friend of the respondent;
(n)
no independent accommodation had by
then
been
secured
by
the
respondent;
and
(o)
B
was not then even attending school in Pakistan nor even
registered
with a school there.
(c) Conclusion
51.
I conclude that, taken cumulatively, the factors set out in para 50 are
stronger than those set out in para 49 and compel a conclusion that on 13
February 2014 B
retained
habitual
residence
in England. Accordingly the
appellant’s application issued on that date under the 1989 Act can and should
proceed to substantive determination. The judge may wish to consider whether to
make
B
a party to the application, acting
by
a
children’s
guardian, and, if so,
whether to invite the guardian to instruct an independent social worker to
interview
B
in Pakistan and to explore the circumstances of her life there. Were
the court’s eventual conclusion to
be
that it was in
B’s
interests to
return
to
England, either occasionally, in order to spend time with the appellant here,
or even permanently, in order to
reside
here again whether mainly with the
respondent
or otherwise, its order could include consequential provision under
section 11(7)(d) of the 1989 Act for the
respondent
to
return
her, or cause her
to
be
returned,
to England for such purposes.
NATIONALITY
52.
There is accordingly no need to consider whether, on the footing that
she had no jurisdiction to determine the appellant’s application under the 1989
Act, Hogg J was entitled to decline to exercise her inherent jurisdiction to
make B,
as a
British
subject, a ward of court and to order (or even to consider
whether to order) the
respondent
to
return
her, at any rate on a temporary
basis,
to England. In A v A, cited above, this court held that the
prohibition comprised in sections 1(1)(d), 2(3) and 3(1) of the 1986 Act
against making an order in wardship proceedings for the care of, or contact
with, a
British
child
neither habitually
resident
nor present in England and
Wales did not preclude a
bare
order for his
return
to England: para 28 (Lady
Hale, with whom the other members of the court agreed).
53.
This court has received
extensive submissions from
both
of the central
parties and from each of the three interveners about the proper exercise of the
court’s power - or indeed the discharge of its alleged duty - to exercise its
inherent jurisdiction where no other jurisdiction exists in which the welfare
of a
British
child
can
be
addressed. With apologies to the solicitors and
counsel who, all unremunerated, have laboured to craft them, I decline to
lengthen this judgment
by
addressing almost all of these submissions. I do,
however, agree with Lady Hale and Lord Toulson when, in para 60
below,
they
reject
the suggestion that the nationality-
based
jurisdiction falls for
exercise only in cases “at the extreme end of the spectrum”. I consider that,
by
asking, analogously, whether the circumstances were sufficiently “dire and
exceptional” to justify exercise of the jurisdiction, Hogg J may have
distracted herself from addressing the three main
reasons
for the court’s usual
inhibition about exercising it. In para 59
below
Lady Hale and Lord Toulson
identify those
reasons
and I agree that arguably none of them carries much
force in the present case. To my mind the most problematic question arises out
of the likelihood that, once
B
was present again in England pursuant to an
order for her
return,
the appellant would have issued an application for orders
relating
to care of her or contact with her. The question would
be
whether in
such circumstances an order for her
return
would improperly have subverted
Parliament’s intention in enacting the prohibitions comprised in sections
1(1)(d), 2(3) and 3(1) of the 1986 Act. Or, in such circumstances, should the
interests of the
child
prevail and indeed would Parliament have so intended?
THE DISSENTING JUDGMENTS
54.
In para 65 below
Lord Sumption complains that the only proposed ground
for allowing the appeal is that it is “highly unlikely, albeit conceivable”
that one habitual
residence
will
be
lost
before
another is acquired. There,
with
respect,
Lord Sumption misunderstands my judgment. What I suggest - in
para 45 above - is that the modern concept of habitual
residence
operates in
the expectation that an old habitual
residence
is lost when a new one is
gained. The mere unlikelihood of the correctness of an outcome favoured
by
a
judge would
be
a disgraceful ground for allowing an appeal. The ground for
allowing this appeal is that the modern concept of habitual
residence
identifies the point of its loss as
being
the stage when the person achieves
the
requisite
degree of disengagement from the old environment (para 48 above);
that intention, in this case parental intention, is no longer dispositive in
this
respect
(para 47 above); that highly
relevant
to the person’s achievement
of that
requisite
degree of disengagement is his achievement of the
requisite
degree of integration in the new environment (para 48 above); and that,
by
application of the modern concept,
B
had not lost her habitual
residence
in England
by
13 February 2014 (para 51 above).
55.
In para 72 below
Lord Sumption quotes from para 44 of the Opinion of
Advocate General Kokott in Proceedings
brought
by
A, cited above. Might
I suggest that inadvertently Lord Sumption has in this
regard
been
too
selective? The Advocate General suggests:
“44. … all the circumstances
of the individual case must be
taken into account where there is a change of
place. An indication that the habitual
residence
has shifted may in
particular
be
the corresponding common intention of the parents to settle
permanently with the
child
in another state. The parents’ intention may
manifest itself, for example, in external circumstances such as the purchase or
lease of a
residence
in the new state, notifying the authorities of the new
address, establishing an employment
relationship,
and placing the
child
in a
kindergarten or school. As a mirror image, abandoning the old
residence
and
employment and notifying the authorities of departure suggest that habitual
residence
in the former state is at an end.”
I have set the words quoted by
Lord Sumption in italics.
My understanding, however, is that in para 44 the Advocate General
recommends
a
composite consideration of “all the circumstances”
both
in the new environment
and, “as a mirror image”, in the old environment in order to determine whether
habitual
residence
has “shifted” from the latter to the former. She does not
suggest consideration only of severance of links with the old environment with
a view to determining whether, even if no new habitual
residence
has
been
gained, the old one has
been
lost. For it is only in the next paragraph that
she turns to that possibility.
56.
Both
Lord Sumption at para 70 and Lord Clarke at para 92 consider that
it makes no sense to
regard
a person as habitually
resident
in England and
Wales if she is not
resident
there at all
because
she has left it to live
permanently elsewhere. With
respect,
my view is different. For me it makes no
sense to
regard
a person’s intention, in this case a parent’s intention, at the
moment when the aeroplane leaves the ground as precipitating, at that moment, a
loss of habitual
residence.
At all events, and more importantly, I
remain
clear
that such is not the modern law.
LADY HALE AND LORD TOULSON:
57.
We agree fully with Lord Wilson’s reasoning
and conclusion on the issue
of habitual
residence.
He has described the identification of a
child’s
habitual
residence
as overarchingly a question of fact (para 46). At the risk
of appearing pedantic, we would prefer to describe it as a mixed question of
fact and law,
because
the concept is a matter of law
but
its application is a
matter of fact. We do not, however, understand Lord Wilson to
be
laying down a
rule of law that a
child
must always have an habitual
residence:
rather that,
as a matter of fact, the loss of an established habitual
residence
in a single
day
before
having gained a new one would
be
unusual. In this particular case,
although the
respondent
said that her intentions were permanent, looked at from
the
child’s
point of view, on the
relevant
date they had
been
in Pakistan for
only nine days, they had no home there, and she had not yet
been
entered into a
school. Had the
respondent
then changed her mind and decided that the move was
a
bad
idea, it is unlikely that a court would have held that the habitual
residence
of either of them had changed during those few days.
58.
Lord Wilson’s conclusion on the issue of habitual residence
makes it
unnecessary to
reach
a decision on the hypothetical question whether it would
have
been
right for the court to exercise its jurisdiction founded on
B’s
nationality if she had no habitual
residence
at the time when these proceedings
began.
It is not in doubt that the
restrictions
on the use of the inherent or
parens patriae jurisdiction of the High Court in the Family Law Act 1986 do not
exclude its use so as to order the
return
of a
British
child
to this country:
this court so held in A v A (
Children:
Habitual
Residence)
[2013] UKSC 60; [2014] AC 1. The Court of Appeal devoted a large proportion of their
judgment to this aspect of the case. Their approach is summed up in para 45:
“Various words have been
used down
the years to describe the kind of circumstances in which it may
be
appropriate
to make an order - ‘only under extraordinary circumstances’, ‘the rarest
possible thing’, ‘very unusual’, ‘
really
exceptional’, ‘dire and exceptional’
‘at the very extreme end of the spectrum’. The jurisdiction, it has
been
said
must
be
exercised ‘sparingly’, with great ‘caution’ … and with ‘extreme circumspection’.
We quote these words not
because
they or any of them are definitive - they are
not -
but
because,
taken together, they indicate very clearly just how limited
the occasions will
be
when there can properly
be
recourse
to the jurisdiction.”
59.
Lord Wilson has listed a number of important issues to which that
question would have given rise and which must wait for another day. It is,
however, one thing to approach the use of the jurisdiction with great caution
or circumspection. It is another thing to conclude that the circumstances
justifying its use must always be
“dire and exceptional” or “at the very
extreme end of the spectrum”. There are three main
reasons
for caution when
deciding whether to exercise the jurisdiction: first, that to do so may conflict
with the jurisdictional scheme applicable
between
the countries in question;
second, that it may
result
in conflicting decisions in those two countries; and
third, that it may
result
in unenforceable orders. It is, to say the least,
arguable that none of those objections has much force in this case: there is no
applicable treaty
between
the UK and Pakistan; it is highly unlikely that the
courts in Pakistan would entertain an application from the appellant; and it is
possible that there are steps which an English court could take to persuade the
respondent
to obey the order.
60.
The basis
of the jurisdiction, as was pointed out
by
Pearson LJ in In
re
P (GE) (An Infant) [1965] Ch 568, at 587, is that “an infant of
British
nationality, whether he is in or outside this country, owes a duty of
allegiance to the Sovereign and so is entitled to protection”. The
real
question is whether the circumstances are such that this
British
child
requires
that protection. For our part we do not consider that the inherent jurisdiction
is to
be
confined
by
a classification which limits its exercise to “cases which
are at the extreme end of the spectrum”, per McFarlane LJ in In
re
N
(Abduction: Appeal) [2012] EWCA Civ 1086; [2013] 1 FLR 457, para 29. The
judgment was ex tempore and it was not necessary to lay down a rule of general
application, if indeed that was intended. It may
be
that McFarlane LJ did not
so intend,
because
he did not attempt to define what he meant or to explain why
an inherent jurisdiction to protect a
child’s
welfare should
be
confined to
extreme cases. The judge observed that “niceties as to quite where the existing
extremity of the jurisdiction under the inherent jurisdiction may
be
do not
come into the equation in this case” (para 31).
61.
There is strong reason
to approach the exercise of the jurisdiction with
great caution,
because
the very nature of the subject involves international
problems for which there is an international legal framework (or frameworks) to
which this country has subscribed. Exercising a nationality
based
inherent
jurisdiction may run counter to the concept of comity, using that expression in
the sense described
by
US Supreme Court Justice
Breyer
in his
book
The Court
and the World (2015), pp 91-92:
“… the court must increasingly
consider foreign and domestic law together, as if they constituted parts of a
broadly
interconnected legal web. In this sense, the old legal concept of
‘comity’ has assumed an expansive meaning. ‘Comity’ once
referred
simply to the
need to ensure that domestic and foreign laws did not impose contradictory
duties upon the same individual; it used to prevent the laws of different
nations from stepping on one another’s toes. Today it means something more. In
applying it, our court has increasingly sought interpretations of domestic law
that would allow it to work in harmony with
related
foreign laws, so that
together they can more effectively achieve common objectives.”
62.
If a child
has a habitual
residence,
questions of jurisdiction are
governed
by
the framework of international and domestic law described
by
Lord
Wilson in paras 27 to 29. Conversely, Lord Wilson has identified the problems
which would arise in this case if
B
had no habitual
residence.
The very object
of the international framework is to protect the
best
interests of the
child,
as the CJEU stressed in Mercredi. Considerations of comity cannot
be
divorced from that objective. If the court were to consider that the exercise
of its inherent jurisdiction were necessary to avoid
B’s
welfare
being
beyond
all judicial oversight (to adopt Lord Wilson’s expression in para 26), we do
not see that its exercise would conflict with the principle of comity or should
be
trammelled
by
some a priori classification of cases according to their
extremity.
LORD SUMPTION (dissenting) (with whom Lord Clarke agrees):
Introduction
63.
I regret
that I am unable to agree with the opinion of the majority.
64.
The reason,
in summary, is that while the test for what constitutes
habitual
residence
is a question of law, whether it is satisfied is a question
of fact. The judge directed herself in accordance with all the
relevant
authorities. She heard the evidence of
both
ladies in addition to
reviewing
a
substantial volume of other material. She found as a fact that the
child
lost
her habitual
residence
in the United Kingdom on 3 February 2014, when she left
the United Kingdom with the
Respondent
to start a new life in Pakistan with no
intention of
returning.
That finding was upheld
by
the Court of Appeal. It
followed that the
child
was not habitually
resident
in the United Kingdom on 13
February when these proceedings were
begun,
even though
by
then she was
probably not yet sufficiently integrated into the life of Pakistan to have
acquired habitual
residence
there.
65.
The sole ground on which it is now proposed to set the judgment aside is
that it is “highly unlikely, albeit conceivable” that habitual residence
will
be
lost
before
a new habitual
residence
has
been
acquired. I
remain
uncertain
whether this is said to
be
a principle of law or a proposition of fact. So far
as it is a principle of law, it appears to me to
be
wrong. So far as it is a
proposition of fact, the judge addressed all the
relevant
considerations in
making her findings.
66.
It is said that this result
leaves the
child
in a jurisdictional limbo
because
on that footing she has no habitual
residence
anywhere. In my opinion, there
is no jurisdictional limbo. Habitual
residence
is the primary test for
jurisdiction,
but
it is not the only one. In English and EU law, in the absence
of an ascertainable habitual
residence,
jurisdiction may
be
founded on the
presence of the
child.
No attempt has
been
made to prove that the law of
Pakistan is any different, and I would
be
very surprised if it was. The
real
objection to the courts of Pakistan is not that they lack jurisdiction
but
that
they are likely to disapprove of same-sex
relationships
and will not
necessarily
recognise
a non-genetic family
relationship.
That is a source of
legitimate concern to the English courts,
but
it is not a
basis
on which they
are entitled to claim jurisdiction.
Loss of habitual residence
67.
I will deal first with the suggestion that there is something wrong in
principle with a finding that a former habitual residence
has
been
lost
before
a new one has
been
obtained.
68.
The habitual residence
of a
child
is the primary
basis
of jurisdiction
in member states of the European Union,
by
virtue of article 8 of Council
Regulation
(EC) 2201/2003. In Proceedings
brought
by
A (Case C-523/07)
[2010] Fam 42, the Court of Justice held that this meant that the presence of
the
child
within the jurisdiction of a state must
be:
“not in any way temporary or
intermittent and that the residence
of the
child
reflects
some degree of
integration in a social and family environment. In particular, the duration,
regularity,
conditions and
reasons
for the stay on the territory of a member state
and the family’s move to that state, the
child's
nationality, the place and
conditions of attendance at school, linguistic knowledge and the family and
social
relationships
of the
child
in that state must
be
taken into
consideration. As the Advocate General pointed out in para 44 of her opinion,
the parents’ intention to settle permanently with the
child
in another member
state, manifested
by
certain tangible steps such as the purchase or lease of a
residence
in the host member state, may constitute an indicator of the transfer
of the habitual
residence.
Another indicator may
be
constituted
by
lodging an
application for social housing with the
relevant
services of that state.”
(paras 38-40)
This statement was substantially repeated
in Mercredi
v Chaffe (Case C-497/10PPU) [2012] Fam 22, and was adopted
by
this court as
part of the domestic law of England in A v A (
Children:
Habitual
Residence)
[2014] AC 1.
69.
Recital
(12) of the Council
Regulation
recites
that “the grounds of
jurisdiction in matters of parental
responsibility
established in the present
Regulation
are shaped in the light of the
best
interests of the
child.”
In the
context of article 12 of the
Regulation,
the Court of Justice has
recently
drawn attention to this
recital
in E v
B
(Case C-436/13) [2015] Fam 162,
para 45.
But
its value, as
both
the
recital
and the judgment make clear, is as
a guide the interpretation of the
Regulation’s
jurisdictional rules. It
explains why the social integration test of habitual
residence
has
been
adopted. Now that it has
been
adopted, the task of the courts is to apply it.
The
recital
is not a licence to treat questions of jurisdiction as
discretionary or to import legal qualifications into the essentially factual
exercise of determining where a
child
is socially integrated and where she is
not.
70.
A person may be
resident
in a country without
being
habitually
resident
there. It is inherent in the concept of a “habitual”
residence
that in many,
probably most cases, a new
residence
may not
become
habitual until some time
has elapsed. The same is true of the integration test for habitual
residence
which has
been
adopted
by
EU and English law. Integration into the social and
family environment of a new place of
residence
cannot always
be
achieved at
once. However, it is self-evidently easier to lose a habitual
residence
at
once. This is
because
the severance of old links is a unilateral act. It can
be
achieved faster than the acquisition of new ones which involve the engagement
of other people and institutions. It makes no sense to
regard
a person as
habitually
resident
in the United Kingdom if she is not
resident
there at all
because
she has left it to live permanently elsewhere. The fact that there is a
house in the United Kingdom which could
be
reoccupied
or that there are friends
or
relations
in the United Kingdom to which the
child
could
return
are
irrelevant if (as the judge accepted) the
child
had
been
lawfully and
permanently
removed
from the country.
71.
Of course this does mean that there may be
a period during which the
child,
although
resident
in a particular country is not “habitually
resident”
anywhere. Other jurisdictional tests, such as presence within the jurisdiction,
nationality or domicile would have had the advantage of allowing a seamless
transition from one status to another.
But
the law has not adopted these tests.
Instead it has adopted a test which
by
its nature is liable to produce a
hiatus. This is simply an inescapable consequence of the concept of a
“habitual”
residence
in a case where a
child
migrates from a familiar to an
unfamiliar place.
72.
The courts have had no difficulty in accepting these as obvious
propositions of fact. Advocate General Kokott in Proceedings brought
by
A
(Case C-523/07) acknowledged that “abandoning the old
residence
and employment
and notifying the authorities of departure suggest that habitual
residence
in
the former state is at an end” (para 44) and that “in exceptional cases… during
a transitional stage there will no longer
be
habitual
residence
in the former
state while the status in the new state has not yet crystallised into habitual
residence”
(para 45). She thought that such situations would
be
exceptional,
but
in the nature of things they can
be
no more exceptional than the facts
which give rise to them. In In
re
J (A Minor) (Abduction: Custody Rights)
[1990] 2 AC 562, 578-579, Lord
Brandon,
speaking for a unanimous appellate
Committee, observed that:
“there is a significant difference
between
a person ceasing to
be
habitually
resident
in country A, and his
subsequently
becoming
habitually
resident
in country
B.
A person may cease to
be
habitually
resident
in country A in a single day if he or she leaves it with
a settled intention not to
return
to it
but
to take up long-term
residence
in
country
B
instead.”
The courts have more recently
expressed
reservations
about parts of this passage, mainly
because
it tends to overstate the
difficulty of acquiring a new habitual
residence.
As
Baroness
Hale observed in A
v A (
Children:
Habitual
Residence),
supra, at para 44, this is “
best
seen as helpful generalisations of fact, which will usually
but
not invariably
be
true”. That is of course
because
habitual
residence
is a question of fact,
as Lord
Brandon
himself had pointed out immediately
before
the passage cited.
She went on, in the same paragraph, to adopt that part of Lord
Brandon’s
generalisation which is directly
relevant
to the present case:
“I would not accept that it is
impossible to become
habitually
resident
in a single day. It will all depend on
the circumstances.
But
I would accept that one may cease to
be
habitually
resident
in one country without having yet
become
habitually
resident
in
another.”
73.
If an old habitual residence
cannot
be
lost until a new one has
been
acquired, it must therefore
be
by
virtue of some rule of rule of law
by
which
regardless
of the facts the severance of the
child’s
links with her former
habitual
residence
is somehow deemed in law to
be
suspended pending the
acquisition of a new habitual
residence.
Yet it is far from clear to me how
this is to
be
reconciled
with what is an essentially a factual enquiry, as
every court which has hitherto considered this question has emphasised. In A
v A, at para 39
Baroness
Hale deprecated the tendency of the courts to
“overlay the factual concept of habitual
residence
with legal constructs”.
These observations were later
repeated
by
Baroness
Hale in In
re
L (A
Child)
(Custody: Habitual
Residence)
[2014] AC 1017 at paras 20-21, and more
recently
by
Lord
Reed,
with whom every other member of this court agreed, in
the Scottish case of In
re
R (
Children)
[2016] AC 76, para 17.
74.
The judgment of the Court of Appeal, delivered by
Black
LJ, put the
point, at para 29, in terms which I cannot improve upon:
“The arguments advanced by
the appellant and also on
behalf
of the intervener,
Reunite,
appeared at times to amount to an invitation to swathe
habitual
residence
in sub-principles, or glosses, or comments, in a way which
would fly in the face of the determinedly factual approach of the European
jurisprudence and the Supreme Court. So, for example, we were invited to say
that it would only
be
in exceptional cases that a
child
would lose one habitual
residence
before
acquiring another … it may
be
that there will turn out to
be
relatively
few cases in which the habitual
residence
of a
child
does not
transfer seamlessly from one country to another,
but
if so, that will
be
because
the facts tend to
be
that way and not
because
the courts impose upon
themselves the artificial discipline of only finding it otherwise in
exceptional circumstances.”
A jurisdictional limbo?
75.
The notion that there must be
a seamless transfer of habitual
residence
is a classic legal construct, which has no place in the essentially factual
enquiry involved in identifying a
child’s
habitual
residence.
The
reason
given
by
the majority for adopting that notion is not that it is factually
impossible, or virtually so, for a
child
to have no habitual
residence.
Their
reason
is that it is legally undesirable
because
it produces a jurisdictional
limbo. However it may
be
described
by
its authors, I find it impossible to
regard
this as anything other than a proposition of law. And I
respectfully
suggest that it is not correct. Article 13 of the Council
Regulation
provides
for
residual
jurisdiction to lie with the courts of the country where the
child
is present in a case where a
child’s
habitual
residence
“cannot
be
established”. As Advocate General Kokott pointed out at para 45 of her advice
in Proceedings
brought
by
A, supra, article 13 was included
precisely in order to cover the situation where a former habitual
residence
has
been
lost
but
the
child’s
status in her new home “has not yet crystallised into
habitual
residence.”
A similar provision appears in article 6(2) of the 1996
Hague Convention on Jurisdiction, Applicable Law,
Recognition,
Enforcement and
Co-operation in
Respect
of Parental
Responsibility
and Measures for the
Protection of
Children.
Jurisdiction
based
on presence is also provided for
by
sections 2 and 3 of the Family Law Act 1986 in cases where neither the Council
Regulation
nor the 1996 Hague Convention applies, and it serves the same
function in that context. For this
reason,
there is no need for a principle of
seamless transfer except in cases where the
child
has
been
removed
to a state
(if indeed there is such a state) where there is no jurisdiction founded on the
presence of the
child
within its territory.
76.
It may well be
true, as Lord Wilson observes (para 30), that
jurisdiction
based
on presence is unsatisfactory
because
in a case where a
child
has no habitual jurisdiction it allows an adult to move a
child
to a jurisdiction
thought to
be
favourable to his or her case. However, in the first place,
adults can do that anyway. Secondly, for
better
or for worse that is what the
Regulation,
the Conventions and the Act provide. And third, the English courts
have no right under the Family Law Act to assert jurisdiction simply on the
ground that they do not approve of the law or practice which would
be
applied
in the courts of the country where the
child
is located. So far as this is a
problem, the solution to it is not to construct an artificial habitual
residence
in the place which the
child
has left for good. It is for the English
courts to
be
more
ready
than they have traditionally
been
to
recognise
that a
new habitual
residence
can
be
rapidly acquired. The Council
Regulation
assumes
that it will normally have
been
acquired in three months: see article 11(7);
and in A v A
Baroness
Hale declined to assume that it could not
be
acquired in a single day.
77.
It should be
noted that the present issue would not arise in a case
where the
child
was wrongfully
removed
in
breach
of rights of any person’s
rights of custody. This is
because
article 10 of the Council
Regulation
confers
jurisdiction on courts of the country where the
child
was habitually
resident
immediately
before
his
removal.
There are similar provisions in article 4 of the 1980 Hague
Convention on the Civil Aspects of International
Child
Abduction and article 7
of the 1996 Hague Convention. The fact that the
child
may have no habitual
residence
for a period after his
removal
is therefore irrelevant. The appellant’s
difficulty in this case is that she had no parental rights at the time of the
child’s
departure from the United Kingdom. She was not
registered
as a parent
at
birth.
There was no civil partnership, no adoption, no parental rights
agreement and no court order
recognising
her status with
regard
to the
child.
The
judge found that the
respondent
was not trying to escape from the jurisdiction
of the English court. She was in law the
child’s
sole parent who was absolutely
entitled to exercise her parental rights
by
removing
her to Pakistan. Although
Lord Wilson characterises the
removal
as “secret” and “clandestine”, the judge
made no finding of underhand conduct which could warrant these pejorative
epithets.
The Judge’s findings
78.
The judge directed herself in accordance with the observations of Lord
Brandon
in In
re
J, so far as these were approved and explained
by
the
Supreme Court in A v A and In
re
L. She concluded that the
child
was too young to have a habitual
residence
other than that of the woman who had
always
been
her primary carer and on whom she was wholly dependent. That seems
an obvious conclusion in the case of a five year-old
child,
but
at the very least
it was a permissible one. I do not understand the majority to dissent from it.
79.
The judge then set out at paras 27-28 her reasons
for concluding that
the habitual
residence
of
both
of them in the United Kingdom was lost when they
left for Pakistan:
“27. The mother said she left
this jurisdiction to make a new life in Pakistan. She had actually been
thinking about it seriously since July of last year. She made her fact-finding
trip in November following which she made a decision. She had the support of
her family. They knew what she was about. She and [
B]
said their goodbyes to
school, to the family. They left their home, packed up their possessions and
the mother sent a letter with the keys of the house to the applicant. She is admittedly
still paying her share of the mortgage to preserve her share of the asset, that
matter has yet to
be
resolved
between
the two ladies. She had the intention to
set up a new life. She had lost her job. She was finding it financially
difficult to
be
in this country even when she was working and she had laid the
ground for a new life in Pakistan. It is important to note what she did
immediately upon arrival in Pakistan. Until the end of April she was unaware of
the applicant’s application to this court,
but
the mother found herself a new
home and a school for the
child
to which they
both
moved in on 19 February,
just 15 days after their arrival. They had previously
been
staying with
friends. She had work already upon her arrival, at which she has continued, and
she made an application for an ID card, which she obtained
before
she
became
aware of these proceedings.
28. As I have said, I am not
satisfied she was running away as alleged by
the applicant, and I accept her
intention that she intended to create a new life for herself and for [
B]
in
Pakistan. On that
basis,
she lost her habitual
residence
here.”
Next the judge considered the perception of the child.
Without making any finding about the appellant’s evidence that the
child
wished
to keep in touch with her, the judge held that even if she did, that did not
mean that her habitual
residence
remained
in the United Kingdom after 3
February 2014:
“The mother is the sole legal
parent and in moving her she had planned a life away from this country. It was not
a wrongful removal.
She was exercising her parental
responsibility.
[
B]’s
wish
to
remain
in touch is something that I must consider. It does not necessarily
mean that the
child
has to
remain
in the country. There are many
children
throughout the world who
remain
in touch with families or members of a family
or even friends when they are
relocated
by
their parents. This is another
relocation
and a
child
wishing to
remain
in touch with a significant person. In
my view her wish to
remain
in touch with the applicant does not justify making
or continuing an individual habitual
residence
in this country when the mother
has abandoned her own.”
80.
This is a classic evaluative judgment on a question of fact with which
this court should in principle decline to interfere, just as the Court of
Appeal declined to do so. If it was legally possible for the respondent
and the
child
to terminate their previous habitual
residence
in the United Kingdom
before
their
residence
in Pakistan
became
“habitual”, then it is difficult to
envisage a clearer case of it than this one. That leaves only the possibility
that it might not
be
legally possible to create such a hiatus.
But
the
authorities in this court which show that it is legally possible are
consistent,
recent
and in my
respectful
opinion plainly right.
Inherent jurisdiction
81.
The inherent jurisdiction of the High Court with respect
to
children
originated in an age where the civil courts had no statutory family
jurisdiction. It is
based
on the concept of a quasi-parental
relationship
between
the sovereign and a
child
of
British
nationality. It enables the courts
to make a
British
child
a ward of court, even if the
child
is outside the
jurisdiction when the order is made. The continued existence of an inherent
jurisdiction in an age of detailed and comprehensive statutory provision is
something of an anomaly. The
basis
of the jurisdiction is, moreover, difficult
to
reconcile
with the content of the statutory rules about jurisdiction. It is
based
on nationality, whereas the statutory rules are
based
on habitual
residence
and presence. Nonetheless, its survival was implicitly
recognised
by
sections 1(1)(d) and 2(3) of the Family Law Act 1986, which prohibited the
exercise of the jurisdiction so as to give care of a
child
to any person or
provide for contact with or the education of a
child,
unless either the court
had jurisdiction under the Council
Regulation
or the 1996 Hague Convention or,
if neither of these applied, the
child
is present or habitually
resident
in the
United Kingdom. Its survival in other cases was acknowledged
by
this court in A
v A, supra, subject to the proviso that its exercise would call for
“extreme circumspection” (paras 63, 65). The case-law, which fully
bears
out
that proviso, is summarised in the judgment of the Court of Appeal, and I will
not
repeat
that exercise here.
82.
The appellant in the present case invites the court, on the footing that
there is no statutory jurisdiction, to use its inherent jurisdiction to order
the return
of the
child
to the United Kingdom. Such orders have
been
made in
two classes of case,
both
of which can
broadly
be
described as protective. The
first comprises abduction cases
before
the enactment of a statutory
jurisdiction to deal with them. The second comprises cases where the
child
is
in need of protection against some personal danger, for example where she has
been
removed
for the purpose of undergoing a forced marriage or female genital
mutilation. All of the modern cases fall into this last category.
83.
A dissenting judgment is not the place for a detailed examination of the
ambit of the inherent jurisdiction. Nor is such an examination required
in
order to determine this appeal. For present purposes, it is enough to make
three points.
84.
First, the jurisdiction is discretionary, and should not be
overturned
in the absence of some error of principle or misunderstanding of the facts,
unless the judge has
reached
a conclusion that no judge could
reasonably
have
reached.
The judge declined to exercise the jurisdiction
because
the appellant
had
been
entitled to exercise her parental rights
by
taking the
child
to
Pakistan and there was no
reason
to
regard
the
child
as
being
in danger there.
In those circumstances, the admitted detriment to the
child
in
being
deprived
of face to face contact with the appellant could not justify
requiring
the
respondent
to
bring
the
child
back.
The Court of Appeal
reached
the same conclusion for
substantially the same
reason.
The situation, they said (para 53), “falls short
of the exceptional gravity where it might indeed
be
necessary to consider the
exercise of the inherent jurisdiction”. I agree with this,
but
on any view I
think that it was a view that a judge could
reasonably
take.
85.
Secondly, the inherent jurisdiction should not be
exercised in a manner
which cuts across the statutory scheme. If, as Lady Hale and Lord Toulson
suggest, the use of the inherent jurisdiction is not
reserved
for exceptional
cases, the potential for it to cut across the statutory scheme is very
considerable. I have no doubt that it would do so in this case. In the first
place, it would fall to
be
exercised at a time when the
child
will have
been
with her mother in Pakistan for at least two years, and will probably have
become
habitually
resident
there. Secondly, it seems plain that if an
application under the inherent jurisdiction had
been
made
by,
say, an aunt or a
sister of the
respondent,
there could
be
no ground for acceding to it. It is
necessary to make this point in order to
remind
ourselves that it is to protect
her
relationship
with the
child
on the
basis
that she should
be
regarded
as a
co-parent that the appellant is invoking the inherent jurisdiction of the
court. The
real
object of exercising it would
be
to
bring
the
child
within the
jurisdiction of the English courts (i) so that the court could exercise the
wider statutory powers which it is prevented
by
statute from exercising while
she is in Pakistan, and (ii) so that they could do so on different and perhaps
better
principles than those which would apply in a court of family
jurisdiction in Pakistan. Thirdly, this last point is
reinforced
by
the
consideration that the appellant’s application in the English courts is for
contact and shared
residence.
This is not
relief
which the statute permits to
be
ordered under the inherent jurisdiction, in a case where there is no
jurisdiction under the Council
Regulation
or the 1996 Hague Convention. I do
not accept that the inherent jurisdiction can
be
used to circumvent principled
limitations which Parliament has placed upon the jurisdiction of the court. For
these
reasons,
in addition to those given
by
the judge and the Court of Appeal,
I do not think that an order for the
child’s
return
could
be
a proper exercise
of the court’s powers.
86.
Third, if there were grounds for believing
the
child
to
be
in danger, or
some other extreme facts justifying the exercise of the inherent jurisdiction,
it would no doubt
be
possible in the exercise of the court’s inherent
jurisdiction to direct an independent assessment of the situation of the
child
in Pakistan. Unless the facts were already clear, that would
be
the least that
a court should do
before
it could
be
satisfied that she should
be
compulsorily
returned
to this country. In the present case, that assessment would also have
to take account of the impact on the
child
of her
removal
for the second time
of her life from a place where she is
by
now presumably settled, as well as the
impact on her of the disruption of her primary carer’s life which would
be
involved in
requiring
her to abandon her life and job in Pakistan to
return
to
a country where she has no job, is estranged from her family and has no desire to
reside.
But
we are not in that territory. The courts
below
have held that there
are no such grounds, and we have no
basis
on which to disagree with them. The
mere absence of statutory jurisdiction in the English courts cannot possibly
be
a
reason
for exercising the inherent jurisdiction. On the contrary, in a case
like this it is a
reason
for not doing so.
87.
Given that the inherent jurisdiction exists to enable the English court
to exercise the sovereign’s protective role in relation
to
children,
from what
is it said that
B
needs to
be
protected? As I understand it, the suggestion is
that she needs to
be
protected from the presumed unwillingness of the courts of
Pakistan to
recognise
the status of the appellant in
relation
to the
child
in
the way that the English court would now do if they had statutory jurisdiction.
I cannot
regard
this as a peril from which the courts should “
rescue”
the
child
by
the exercise of what is on any view an exceptional and exorbitant
jurisdiction.
Disposition
88.
For these reasons,
I would dismiss the appeal.
LORD CLARKE:
89.
In this appeal I have reached
the same conclusions as Lord Sumption,
essentially for the
reasons
he gives.
Habitual Residence
90.
Hogg J held that B
lost her habitual
residence
here when she was taken
to Pakistan and the Court of Appeal held that there was no
reason
to interfere
with that conclusion. Hogg J is a very experienced family lawyer. So too are at
least two members of the Court of Appeal, namely Munby P and
Black
LJ, who gave
the judgment of the court to which all three members contributed. My principal
reason
for preferring the opinion of Lord Sumption to that of the majority is
that there is, in my opinion, no principled
basis
for holding that the decision
of Hogg J was wrong, either in law or on the facts. She was entitled to
reach
the conclusions which she did and the Court of Appeal were right to dismiss the
appeal from her decision.
92.
In particular, after setting out her conclusions of fact at paras 26 to
28, Hogg J was in my opinion entitled to hold (as she did at para 29) that,
when the mother lost her habitual residence
on leaving the United Kingdom, so
did
B.
I agree with Lord Sumption that there is nothing wrong in principle with
a finding that a former habitual
residence
has
been
lost
before
a new one has
been
obtained. All depends upon the facts of the particular case. On the facts here
I agree with him (at para 96) that it is self-evidently easier to lose a
habitual
residence
at once than acquire a new one and that it makes no sense to
regard
a person as habitually
resident
in the United Kingdom if she is not
resident
at all
because
she has left to live permanently elsewhere. Finally, I
agree with him that if, as Hogg J held here, the
child
had
been
lawfully and
permanently
removed
from the country, the fact that there is a house in the UK
which could
be
reoccupied
or there are friends and
relations
to whom the
child
could
return
is irrelevant.
93.
In para 28 of the judgment in the Court of Appeal, after referring
to a
number of
recent
cases including A v A (
Children:
Habitual
Residence)
[2013] UKSC 60; [2014] AC 1,
Black
LJ said this:
“The European formulation of the
test (to be
found in Proceedings
brought
by
A [2010] Fam 42 at para 2,
as quoted in A v A at para 48) is the correct one, namely that ‘the
concept of habitual
residence
… must
be
interpreted as meaning that it
corresponds to the place which
reflects
some degree of integration
by
the
child
in a social and family environment’. The inquiry is a factual one,
requiring
an
evaluation of all
relevant
circumstances in the individual case. It focuses upon
the situation of the
child,
with the purposes and intentions of the parents
being
merely among the
relevant
factors. It should not
be
glossed with legal
concepts. And, as Lord
Reed
observed at para 18 of
In
re
R (
Children)
[2015] UKSC 35; [2015] 2 WLR 1583, when the
lower court has applied the correct legal principles to the
relevant
facts, its
evaluation will not generally
be
open to challenge unless the conclusion which
it
reached
was not
reasonably
open to it.”
I respectfully
agree.
94.
Black
LJ then set out her para 29, which is quoted with approval
by
Lord
Sumption. Finally, in para 30 she expressed the view that Hogg J’s approach to
habitual
residence
was in line with the authorities. She then specifically (and
correctly) considered
B’s
position separately from that of her mother and
concluded:
“[Hogg J] described in her judgment
the situation in this country and the situation in Pakistan in such a way as to
show that she had looked both
at what P was leaving and what was awaiting her
in Pakistan. In short, she applied the proper principles to the
relevant
facts
and there is no
reason
to interfere with her finding that P lost her habitual
residence
here when she left for Pakistan.”
Again, I agree.
95.
For these reasons,
which are essentially the same as those given
by
Lord
Sumption, namely that neither Hogg J nor the Court of Appeal erred in fact or
law, I would have dismissed the appeal on the habitual
residence
point.
Inherent jurisdiction
96.
I agree with Lord Sumption that
the appeal on this ground should also be
dismissed. I do so for essentially the
same
reasons
as on the habitual
residence
point, namely that Hogg J made no
error of fact or law and that the Court of Appeal correctly so held.
97.
I agree with Lady Hale and Lord
Toulson that the court must approach the use of the inherent jurisdiction with
great caution and circumspection for the reasons
they give. However, I agree
with Lord Sumption that on the facts of this case it should not use the
inherent jurisdiction to order
B
to
be
returned
to the jurisdiction in order to
enable it to exercise its statutory jurisdiction in circumstances in which it
would not otherwise have that jurisdiction. This is not to say that there may
not
be
circumstances in which it would
be
appropriate for the English court in
another case to consider the welfare of the
child
more generally without
requiring
his or her
return to the jurisdiction, at any rate in the first instance. As
ever, all will depend on the circumstances.