Re A (A Minor) (Wardship: Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Family Division |
HALE, J
Wardship – jurisdiction – habitual residence of child living and receiving schooling in Pakistan – both parents habitually resident in the United Kingdom – whether a child's habitual residence may be unilaterally changed by one parent without the agreement of the other – whether agreement regarding a change to a child's habitual residence may be terminated by one parent without the agreement of the other.
The parents of a girl born in England on 7 February 1986 had married in Pakistan in November 1980. The child had spent approximately four years in Pakistan, returning in 1992. The child went back to Pakistan in January or March 1994, in the company of several members of her family, including the maternal grandmother and a cousin. The child and her cousin were enrolled in a school in Rawalpindi in April 1994, and the child had remained in Pakistan since this time, returning only very shortly before this hearing.
The issue to be determined by the court was whether the inherent jurisdiction applied in respect of the child. This depended upon where the child was now habitually resident, in England or in Pakistan. If the latter, jurisdiction as conferred by the Family Law Act 1986 would not apply. In the short-term, the court did have jurisdiction, as the child had returned from Pakistan for the hearing.
A number of interim orders, initially ex parte, had been made until such time as the issues relating to jurisdiction could be determined. It was the mother's case that she was not consulted about the decision to send the child to school in Pakistan and, in any event, even if she had been consulted, she would have been powerless to prevent it. She had repeatedly asked for her daughter to be returned. The mother encountered difficulties in obtaining legal advice and thereafter in her application for legal aid. Ultimately, her application became urgent when it was suggested that the remainder of the family in England was planning to move to Pakistan. The mother was fearful that, if the family did move to Pakistan, there would be no chance of her daughter returning.
On behalf of the father it was argued that, although the child had been born in England, she had spent a considerable part of her life in Pakistan. Although he accepted that both he and his wife were habitually resident in England, the case should be viewed in the context of the extended family, which was closely interlinked, with strong religious, cultural and other ties with Pakistan. The father contended that the mother had not only known about the plans to send the child and her cousin to school in Pakistan, but had actually suggested it. At the very least, the mother had not disagreed with those plans. The father alleged that the mother had taken both girls to a general practitioner for the necessary vaccinations, had made other arrangements preparatory to the journey, and even
accompanied the girls to the airport on the day of the departure. Whether or not the mother actually agreed to the child going to Pakistan, the father argued that she had acquiesced in the plans and had participated in the arrangements, thus, impliedly at least, agreeing to the change in the child's habitual residence. The mother and the Official Solicitor both contended that, even if the mother had known longer in advance of the arrangements for the journey than she says and had participated in the arrangements, this was not sufficient in the circumstances to cause the child's place of habitual residence to be changed.
Held – (1) As it was accepted that both parents were habitually resident in this country, the case-law relating to parents residing in different countries was not directly in point. Nevertheless, in Re J (A Minor) (Abduction: Custody Rights) [1991] FCR 129, it was said that the term, "habitual residence" was to be understood according to the ordinary and natural meaning of the words, and that whether or not a person was habitually resident in a specified country was a question of fact to be decided by reference to all the circumstances of the particular case. As a result of the shared parental responsibility of married parents, which entitled them to determine where the child should live, if those parents are together, the habitual residence of their child would be the same as the parents unless there was a settled agreement between them to the contrary. Although one parent, in the exercise of his or her parental responsibility, would be entitled to send a child abroad, that parent, acting alone, could not change the habitual residence of the child without the agreement of the other parent, unless circumstances arose which, quite independently, pointed to a change in the child's habitual residence.
(2) As proposed in Re J (above), if the parents were separated, the habitual residence of their child would be that of the parent who has the right to determine where the child shall live, although this proposition might require modification in the case of an older child, where the custodial parent sent the child to a different country from the one in which he or she lived.
(3) If the parents were not separated, even if there was agreement between them for the child to live abroad (whether limited for the purpose of education or otherwise), if both parents remained habitually resident here, and the agreement failed for any reason, it would not be necessary for both parents to agree to the child's return for the child to again be habitually resident here. It was open to parents to change the habitual residence of their child without changing their own, but an agreement to send the child abroad to a boarding school would not suffice for this purpose.
(4) It was understood that, although education was the principal purpose of the child travelling to Pakistan, there were other religious and cultural...
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