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Courts can make contact orders between boy in Pakistan and mother in UK

8 December 2009

English and Welsh courts have jurisdiction to make contact orders between children living outside the EU and their parents, the Supreme Court has ruled.

Giving the leading judgment in I (A Child) UKSC 10, Lady Hale said that the boy was born in 2000 and was a British citizen.

I’s mother originates from India and his father from Pakistan. Several months after his first birthday, I was taken to hospital with fractures to his arms.

Lady Hale said that during care proceedings, it was decided that the father had caused the injuries but later, in the light of new evidence, the mother was held to have been responsible.

A residence order was made in 2003 in favour of the father, including supervised contact with the mother. The following year, the father was granted leave to take the boy to Pakistan to live with the father’s mother and sister.

In 2007, the mother applied for a contact order to obtain as much telephone contact as possible and to stop the grandparents encouraging the boy to call them “mum” and “dad”.

The High Court ruled that it did not have jurisdiction to make the order, but the mother appealed, claiming that article 12 of Council Regulation (EC) No 2201/2003 (‘Brussels II Revised’) could apply to a child habitually resident outside the EU.

Lady Hale said that when the issue of forum non conveniens was aired at the High Court, the guardian took the view that on balance it would be better for the case to be heard here.

“The nub of the issue is the contact which the child should have with his mother in this country,” she said. “Any continuing risks associated with that contact will be better assessed here and any safeguards will need to be put in place here. Inquiries in Pakistan can be made through international social services or other agencies.

“Of course, the difficulties of enforcement must also be taken into account. But it must be borne in mind that contact orders have always been enforced in personam, against the person to whom they are addressed.

“Unlike residence orders, they are not enforced by the physical transport of the child from one place to another.

The court is bound to view with some scepticism the protestations of a father, who has the benefit of an order that the child is to live with him, that he will be unable in practice to secure the child’s compliance with an order for contact with the mother. It may be so but it is not very likely.”

Lady Hale allowed the appeal, and declared that the courts of England and Wales had jurisdiction. Lords Hope, Collins, Kerr and Clarke agreed.

Janet Broadley, solicitor at Bindmans, acted for the mother. She said she was delighted by the ruling, which would have a “huge impact” on the mother and her wish to continue “a close and loving relationship” with her son.

“As a matter of law this landmark decision has a profound and far-reaching impact on the interpretation of Brussels II Revised, and will undoubtedly be widely considered and commented upon in all of the European countries that are signatories to that regulation.”

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Children Procedures Costs