Re B (A Child) (Habitual Residence: Inherent Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Lord Toulson,Lady Hale,Lord Wilson,Lord Clarke,Lord Sumption |
| Judgment Date | 03 February 2016 |
| Neutral Citation | [2016] UKSC 4 |
| Date | 03 February 2016 |
| Court | Supreme Court |
[2016] UKSC 4
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Sumption
Lord Toulson
Appellant
David Williams QC
Alistair Perkins
Michael Gration
Mehvish Chaudhry
(Instructed by Freemans Solicitors)
Respondent
William Tyler QC
Hannah Markham
Miriam Carrion Benitez
(Instructed by Goodman Ray Solicitors)
Intervener (Reunite)
Richard Harrison QC
Madeleine Reardon
Jennifer Perrins
(Instructed by Farrer & Co LLP)
Intervener (The International Centre for Family Law Policy and Practice)
Henry Setright QC
Hassan Khan
Dorothea Gartland
Katy Chokowry
(Instructed by Dawson Cornwell)
Intervener (The AIRE Centre)
Deirdre Fottrell QC
Michael Edwards
(Instructed by Bindmans LLP)
Heard on 8 and 9 December 2015
Lord Wilson (with whom Lady Hale and Lord Toulson agree):
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.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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...
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