A v A (Children: Habitual Residence)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLady Hale,Lord Toulson,Lord Wilson,Lord Hughes,Lord Reed
Judgment Date09 Sep 2013
Neutral Citation[2013] UKSC 60

[2013] UKSC 60

THE SUPREME COURT

Trinity Term

On appeal from: [2012] EWCA Civ 1396 & [2013] EWCA Civ 232

Before

Lady Hale, Deputy President

Lord Wilson

Lord Reed

Lord Hughes

Lord Toulson

In the Matter of A (Children) (AP)

Appellant

James Turner QC

Alistair Perkins

Hassan Khan (Instructed by Dawson Cornwell)

Intervener (Reunite International)

Richard Harrison QC

Peter Newman (Instructed by Bindmans LLP)

Intervener (The Centre for Family Law and Practice)

Baroness Scotland QC

Ruth Kirby

Rachel Chisholm

Maeve O'Rourke (Instructed by Hodge Jones & Allen)

Respondents

Henry Setright QC

Manjit Gill QC

Edward Devereux

David Marusza (Instructed by Thompson & Co)

Intervener (Children and Families Across Borders)

Alex Verdan QC

Jacqueline Renton

Michael Gration (Instructed by Farrer & Co LLP)

Heard on 22 and 23 July 2013

Lady Hale (with whom Lord Wilson, Lord Reed and Lord Toulson agree)

1

The issue in this case is whether the High Court of England and Wales has jurisdiction to order the "return" to this country of a small child who has never lived or even been here, on the basis either that he is habitually resident here or that he has British nationality.

The facts
2

The child, whom I shall call Haroon, was born on 20 October 2010 in Pakistan. His father (born in 1973) is one of five siblings, who were all born in England to parents who came here to live from Pakistan in the 1960s. His mother (born in 1978) is the father's first cousin. She was born and brought up in Pakistan and entered into an arranged marriage with the father in Pakistan in 1999. She joined the father here the following year and they lived together in a property shared with other members of the father's family. The mother and father have three children together who were born here: a daughter born in 2001, who is now 12, a second daughter born in 2002, who is now 10, and a son born in 2005, who is now eight. The father and children have dual British and Pakistani nationality and the mother has indefinite leave to remain here. This much is uncontentious.

3

The subsequent history was in dispute at the fact-finding hearing before Parker J in the High Court. However, the father had remained in Pakistan throughout, had never made a witness statement, and was neither present nor (by the final day) represented at the hearing. His version of events was put forward by his brother. The judge ordered him to take part by telephone but he could not be reached at the number through which he had previously been reached. The judge had no doubt that the telephone had been deliberately turned off. Nevertheless, she insisted that the mother give evidence and put the father's version of events to her "quite forcefully". She found the mother to be an "intelligent, careful and precise witness" and accepted her evidence. The following are therefore the facts as found by the judge.

4

The marriage was happy until 2006, when the father began to spend a good deal of time in Pakistan. In 2008, the mother complained of physical abuse by the father and moved with the three children into a refuge. Early in 2009, they moved into a flat owned by the father's brother, PA, for which the mother paid rent. The mother planned to take the children on a trip to Pakistan in the autumn to visit her father. She obtained Pakistani identity cards for them, was given leave of absence from their school, and travelled out with them on 13 October 2009, with tickets to return early in November. She did not know that the father was going to be in Pakistan at the same time.

5

While they were staying at her father's home, the father, his mother and another brother arrived and, together with her own father, insisted that the parents reconcile. The mother felt that she had no choice: there was physical and emotional coercion. She returned with the father to his family home in Pakistan and was forced to give up her own and the children's passports, although she later managed to retrieve her own. But she made it clear that she wanted to return with the children to England. The judge did not find it necessary to make "any specific finding about violence". She was "quite satisfied that such pressure was put on the mother that she had no choice in her own mind, particularly because she did not want to leave her children and that she was frightened of the consequences".

6

In February 2010, the mother became pregnant with Haroon. The refuge in England confirmed that, from that month, she was making telephone calls to them asking for their help to return with the children to England. After Haroon was born, the father brought proceedings for custody of the children in Pakistan. In December 2010, the mother's father brought proceedings, as the judge termed it, "essentially for habeas corpus" of the mother and the four children. It appears that both sets of proceedings were dropped. Eventually, in May 2011, the mother's father sent elders round to the father's family to persuade them to let the mother leave for a few days to stay with relatives. She was thus able to leave the country with their help and return to England, but she had to leave the children behind.

7

These proceedings began on 20 June 2011 with an order made by Peter Jackson J without notice to the father. By that order, the judge made all four children wards of court and ordered that they be returned to England and Wales by the father forthwith. Every person within the jurisdiction who was in a position to do so was ordered to co-operate in assisting and securing the children's immediate return. Any person not within the jurisdiction who was in a position to do so was requested to co-operate in assisting and securing their immediate return. The judicial, administrative and law enforcement authorities of the Islamic Republic of Pakistan were requested to use their best endeavours to assist in taking any steps which might appear to them necessary and appropriate in locating, safeguarding and facilitating the return of the children in accordance with the spirit of the UK-Pakistan Judicial Protocol on Children Matters signed by the Chief Justice of Pakistan and the President of the Family Division of the High Court of England and Wales on 17 January 2003. That order was served on the father in Pakistan and confirmed by Her Honour Judge Coates on 30 September 2011.

8

On 31 October 2011, the mother obtained a without notice order from Eleanor King J freezing the father's assets in this country, with a view to sequestration as a means of persuading the father to comply with the court's orders or at least of providing the mother with funds to litigate in Pakistan. This brought the father's brother, PA, into the proceedings, as he is co-owner of one of the properties specifically named in the order. The order was confirmed by Her Honour Judge Cahill QC on 28 November 2011 after a hearing at which the father was represented by counsel, but not present. The matter was listed for determination of the jurisdiction question in February 2012. Despite various manoeuvrings in an attempt to have it postponed, the hearing went ahead before Parker J, with the father playing no part and PA now acting in person with another brother, JA, as his McKenzie friend. PA had also filed two witness statements setting out the case for the father and his family.

9

On 20 February 2012, Parker J determined that all four children were habitually resident in England and Wales: [2012] EWHC 663 (Fam). She was satisfied that the mother never voluntarily sought for the children to live in Pakistan. She rejected the father's assertion that there was an agreement that the parents should reconcile and live in Pakistan. She accepted that the mother never acquiesced, became resigned or consented to her and the children remaining in Pakistan. The three older children therefore retained their habitual residence in England. Adopting the approach of Charles J in B v H (Habitual Residence: Wardship) [2002] 1 FLR 388, she determined that Haroon, too, was habitually resident here, having been born to a mother who remained habitually resident here and who was kept in Pakistan against her will. She continued both the wardship and the freezing orders and again ordered that the children be returned to this jurisdiction by their father forthwith.

10

The father and his brother applied for permission to appeal out of time to the Court of Appeal, which heard the case in July 2012. The reserved judgment was sent to the parties in October 2012, but the order was not made until 31 January 2013, when a short supplemental judgment was delivered: [2012] EWCA Civ 1396 and [2013] EWCA Civ 232. The Court unanimously dismissed the father's appeal in respect of the three older children, described by Patten LJ as "quite hopeless". But by a majority, Rimer and Patten LJJ, his appeal in relation to Haroon was allowed, on the ground that the acquisition of habitual residence in any country requires the child in question to be physically present there. Habitual residence is a question of fact and a rule that a newly born child is presumed on birth to take the habitual residence of his parents "would be a legal construct divorced from actual fact". It would also be inconsistent with the approach of the Court of Justice of the European Union. B v H (Habitual Residence: Wardship) should be overruled. Thorpe LJ dissented. In his view a baby born to a mother resident here while on holiday abroad would be habitually resident here from the moment of birth and not from the time when he entered this country. But he recognised that "on its facts this case narrowly falls on the right side of an important boundary".

11

The judgment also invited the parties to make further submissions on whether England and Wales was the right forum in which to determine the future of the older children, given the Court's...

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