Abduction and the court's powers to determine habitual residence

The traditional approach of assessing whether a child has lost or gained habitual residence in a country relied heavily on parental intention at the time of abduction. Following the Supreme Court decision in B [a child] (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 it is clear that parental intention is only one of the factors to be considered. The judgment confirms that the identification of a child’s habitual residence requires analysis of all relevant factors to examine where a child has the greater degree of family and social integration as well as their understanding of the purpose of the move. 

This approach is consonant with the European interpretation of habitual residence and criterion set out in the European Court of Justice. The tipping point will occur when the child has achieved the necessary degree of disengagement from their habitual residence in one jurisdiction and become sufficiently integrated in their new home, acquiring a new habitual residence in the new jurisdiction. 

This case is particularly interesting as it is the first reported case of abduction by a parent formerly in a same-sex relationship. It concerned a seven-year-old child, conceived through NHS fertility treatment and co-parented by two women. Significantly, the non-biological mother had never applied to become a ‘legal’ parent; however, it was accepted by the court that she had a strong bond with the child, who considered her as another parent. When the parents’ relationship broke down, the biological mother took the child to live in Pakistan, her country of origin, without the other mother’s knowledge or consent. 

Ten days after abduction, the left-behind mother issued proceedings in England for a shared residence and contact order, believing the child still to be in the UK. This application depended upon showing that the child was a habitual resident in England at the time the application was issued. It was not until three months later that she discovered the child was actually in Pakistan. She then made further applications to the court for the child to be made a ward of court and returned to England in order to conduct a proper welfare investigation into the circumstances of the child’s removal.

Hague Convention

Pakistan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980, which sets out established procedures by which the left-behind parent can pursue the return of the child. The left-behind mother, therefore, would have had to issue proceedings in Pakistan for a judge in Pakistan to consider a request for return to the UK.

It was argued that, as homosexuality is not recognised socially or legally in Pakistan, which is a Sharia law country, the left-behind mother would have no practical remedy because the courts would not recognise her as a parent. It was even suggested that by making an application in Pakistan she may be placing the child in danger. She could only rely on the courts in this country to provide a remedy.