A child's habitual residence: Where is it and when can it change?

The international movement of children has been a hot topic throughout 2015, particularly in the context of deciding the child's habitual residence, which is always a key factor when dealing with an abduction case. In the recent Supreme Court judgment of Re: B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, one of the questions the court was asked to consider was whether the English court retained the power to make orders concerning a child who was now resident abroad following an abduction.

Child abduction

The case concerned a seven-year-old child (B) who had been conceived through NHS fertility treatment. Her father was an anonymous sperm donor and her mother had attended pre-treatment counselling together with her lesbian partner. After B's birth the two women co-parented the child, with the non-biological mother playing a significant role in the child's upbringing, such that she grew up in a home where she considered she had two mothers. Significantly, the non-biological mother had never applied to be a 'legal' parent and so did not have parental responsibility for the child. However, she had a strong bond with the child and was referred to in the proceedings as the child's 'psychological parent'.

Sadly, the relationship between the two women broke down. B remained living with her biological mother, but her 'psychological' mother actively sought to establish a regular pattern of contact with her and, to this end, the two women agreed to attend mediation to see if arrangements could be reached without involving the court. Just before the second mediation session, the biological mother took the child to live permanently in Pakistan, which was her country of origin, without the other mother's knowledge or consent. It was clearly a removal that was planned prior to the first mediation session (which the Supreme Court considered was a 'charade'), but deliberately concealed from the other parent.

After ten days of trying to find B, and believing her to still be in the UK, the left behind mother issued proceedings for, inter alia, shared residence and contact orders in respect of the child. This application depended on showing that the child was habitually resident in England at the time that it was issued. It was not until three months later, having served the biological mother's parents with the applications, that she finally discovered that the child was in Pakistan. She then made a further application to the court under its inherent jurisdiction for the child to be made a ward of court and returned to England, so that this country could conduct a proper welfare investigation into the circumstances of the child's removal and the effect it would have had on her.

Legal remedy

Had the abduction been to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the '1980 Convention'), then there would have been established procedures by which the left behind mother could pursue the return of the child to this country. However, Pakistan has not signed up to the 1980 Convention, and although there is a separate UK-Pakistan Protocol between the two countries, it only applies as a 'judicial understanding' requiring judges in Pakistan to consider any existing orders in the child's 'home' country when considering a request for return. The protocol still requires the left behind parent to start court proceedings in Pakistan before it can be invoked, but Pakistan is a sharia law country where there is widespread social and state discrimination against homosexuality, which is considered to be abnormal sexual behaviour and is not recognised socially or in law. The clear suggestion was that courts in Pakistan would simply not entertain an application from a non-biological gay mother for the return of a child on the basis that she was a 'parent'.

It was argued that the left behind mother therefore had no effective legal remedy in Pakistan that would enable the court to determine what was best for the child's welfare in the future and to make appropriate orders. She could only rely on the courts in this country to assist. Research has shown that children who are abducted, and therefore uprooted from everything they know, including school, family, friends, and in this case, her psychological mother, can suffer long-term emotional damage. There was added concern that, in this case, the damage suffered might be exacerbated by the fact that the child had been abducted to a country where her biological mother was at risk of persecution and where her psychological mother would not be acknowledged as a parent at all. The question was, how could the child have a full appreciation of her identity as a child of same-sex parents if she was living in Pakistan?

Habitual residence

The abducting mother argued that the removal was perfectly lawful as the left behind parent did not have parental responsibility and, in any event, this country did not have jurisdiction to enquire into the B's welfare and make orders in respect of her because she was no longer habitually resident here when the first applications were made, ten days after her departure. In the Court of Appeal Mrs Justice Hogg agreed and said that the child had lost her habitual residence in this country in the ten-day period between the abduction and the left behind parent's first application for orders under the Children Act 1989. However, she also said that the child had not gained habitual residence in Pakistan either in that time period, so in effect the child had no habitual residence. She dismissed the left behind mother's appeal.

Under the current EU scheme a child cannot be habitually resident in two places at once, but it was not clear whether it is possible for a child to have no habitual residence either. The criteria for habitual residence set out in case law refer to objective markers at the time of the abduction which indicate a settled intention to live in a particular place. These markers point to where the child was most integrated in terms of school, family, friends, language, and relatives. It was the left behind mother's case that ten days after the child's departure to Pakistan, which was totally alien to her and where she knew no one other than her mother and could not speak the language, she was more closely connected with the UK and she was therefore still habitually resident here at the time the first application to court was made.

The matter went to the Supreme Court, which was asked to determine:

• Was it appropriate for the court in England and Wales to enquire into the child's welfare and make orders in respect of her when she was now living in Pakistan? and

• Was the child still habitually resident here when the left behind parent made her application for orders under the Children Act 1989 ten days after the child had left the country? If so, that would enable the left behind parent to invoke the court's inherent jurisdiction in respect of her care and conduct.

Supreme Court decision

The Supreme Court allowed the left behind mother's appeal by a majority of three to two on the basis that the child had not lost her habitual residence in the ten days between her leaving this country and the left behind mother making the first applications to court. The reasoning was that it is not in the interests of a child routinely to be left without a habitual residence and the English court's interpretation of this should be consonant with its international interpretation, namely that there should be some degree of integration by the child in the social and family environment before a new habitual residence can be acquired.

The court compared it to a 'see-saw' effect, so that as the child puts down roots in the new country, the roots they had in the country where they were previously habitually resident will come up until there is a tipping point at which time their habitual residence changes to the new country.

The relevant question was therefore whether the child had, ten days after her removal from this country, achieved the requisite degree of disengagement from her English environment and become sufficiently established and integrated in Pakistan to mean that she was now habitually resident there. The answer was no.

This case now enables courts in this country to extend their jurisdiction to children living outside the UK so that a remedy can be provided which would not be available under the law of the country in which the child is physically resident, as long as they are satisfied that the child's social and family connections with this country have not been superseded by connections with the country in which they are now living. It gives a ray of hope to the parents of children abducted to countries which are not signatories to the 1980 Convention, as long as proceedings are issued quickly and before the child has become sufficiently integrated in the new country such that they lose their habitual residence in the UK.

Nevertheless, a child who enters this country from a sharia law country and is subject to a proviso that they will not be adopted, in accordance with sharia law, can still be the subject of an application for adoption provided that they live with a family for at least three years if the child's welfare requires it. The desire to find ways to continue protecting the welfare of the child remains paramount in the court's approach.

Hetty Gleave is a partner at Hunters Solicitors