Modern family, modern values, modern law

Once upon a time, the House of Lords, as it was, took hardly any family law cases. This was probably a reflection of the old-fashioned view that family law was an upstart, a variety of law with its own codes and its own way of doing things, and out of kilter with pure justice.

Attempts to modernise family law, for example to recognise the equal contribution of homemaker and breadwinner, failed to attract the attention of the highest court in the land. England and Wales laboured for hundreds of years under the oppressive weight of paternalism, according disrespect to the homemaker and carer of the children when it came to the division of matrimonial assets. And then along came White on 26 October 2000.

As we have emerged into the first decade of the 21st century, however, the Supreme Court has, thankfully, taken many family law appeals: family law is no longer a desert island, but mainstream.

From the first breaths of equality in White to the structuring of pillars of equality, contribution, and need to give sense to the discretionary disposition of family assets in Miller and McFarlane; from the respect given to autonomy and foreign property agreements in Radmacher to the purity of trust law to finding a way for Yasmin Prest to get behind the corporate veil; and in tackling the jurisdictional complications thrown up by the fluid and global nature of today's society, and in the protection of children, the Supreme Court has propelled family law forwards and moulded a modern, international family law fit for purpose.

One of the most recent examples of the Supreme Court's modernisation of international family justice is the case of Re B (A child) [2016] UKSC 4, the first international abduction case involving a gay couple to be reported (at least in England). Yours truly represented Reunite, intervenors in the two Court of Appeal hearings and in the Supreme Court. In truth, the case was a casualty of the logjam that is the listing system in the courts, taking one-and-a-half years to meander from the High Court decision to the Supreme Court judgment.

Re B

The child, a British citizen born on 5 April 2008, was removed by her mother from England to Pakistan in a manner that was designed to deceive the other woman who played a parental role in the child's life, a woman who had not obtained parental responsibility for the child (there being no legal aid for family law, parents are frequently ignorant of their legal rights and responsibilities). She was, however, the archetypical 'psychological parent', to whom enlightened international law now pays so much respect.

The High Court judge held that at the time of the abduction - Lady Hale was emphatic in using that word even though a crime had not been committed - the child lost her habitual residence in England and was therefore in limbo, not yet having acquired a new habitual residence in Pakistan.

That being the case, the court did not have jurisdiction to make any orders for return of the child or for child arrangement orders under the Children Act 1989, because the child was not habitually resident in England at the time when the applicant applied for her return to England.

The case was complicated by the homosexuality of the parents. The Court of Appeal, despite refusing the appeal from the High Court decision, specifically referred to the criminalisation of homosexuality in Pakistan, and the fact that the applicant could not effectively obtain justice in that country for that reason. It is a stain on humanity that 80 countries in the world still outlaw homosexuality, with the resultant denial of children's and adults' rights.

The ingenious lawyers acting for the applicant included the request that the court should use its powers of wardship to require the return of the child. They based the wardship application on the nationality jurisdiction, available to enable English courts to make orders relating to English children wherever in the world they are located.

The Supreme Court had already dealt with wardship applications in this kind of case, because a nationality-based application was made and precedent set in the case of Re A (Children) (AP) [2013] UKSC 60. The subsequent issue in Re B was whether the Supreme Court would interpret or develop the law in a way that would allow an order to be made enabling the abducted child to have a relationship with the applicant.

The mischief of the law pre-Re B was that parents without parental responsibility would often lose their children in this manner. Most obviously,
fathers without parental responsibility quite
often found themselves in this situation.

Hardly a surprise, therefore, that Reunite's submissions in the Court of Appeal and in the Supreme Court were focused on eliminating that limbo land where a child could be said to be habitually resident in no country, and therefore beyond the jurisdiction of the English court from which the child had been abducted.

Blended families

In addition, it was hardly a surprise that the leading judgment in the three to two majority verdict was given by Lord Wilson of Culworth. The dedicated family jurist had given a highly acclaimed address to the Northern Irish Medico-Legal Society in February 2014 on the subject of equal marriage. In a scholarly exposition on the modern family, to which the writer would add reference to the Fourie case in the South African Constitutional Court, Lord Wilson traced and welcomed the legal genesis of equal marriage and of blended families.

The parties in Re B were not married, yet the insemination of the mother and the birth of their child were planned by the applicant and respondent together; the parties cohabited and looked after the child together. The child called the respondent 'mama' and the applicant 'mimi'.

At the time when the parties had separated and the applicant was trying to establish a relationship with the child through solicitor correspondence, the respondent took advantage of extended mediation to abduct the child to Pakistan. As Lord Wilson memorably pointed out in the hearing, the mediation was 'a charade'.

The Supreme Court allowed the appeal, ruling that the modern European jurisprudence showed habitual residence will, generally, not be lost as soon as the aeroplane carrying the child leaves the tarmac.

Law of the see-saw

Giving his judgment, Lord Wilson engagingly evoked the law of the see-saw: 'Simple analogies are best: consider a see-saw. As, probably quite quickly, the child puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it'.

Practitioners will not do habitual residence cases without paying strict attention to Lord Wilson's testing of the relevant indicia - weighing up each of the factors which connect the child with her new country, and which still tie her to her country of birth and life pre-abduction.

Lord Wilson thereby overruled Lord Brandon's dicta in the 1990 case of In Re J. The Supreme Court has freshened up our law and said that we should ignore all domestic authority before the Court of Justice of the European Union decisions in A and Mercredi. The Supreme Court has also said that, at least in some respects, the Brussels II Revised jurisdictional rules are of universal application.

Having parallel codes on habitual residence in EU law and domestic law was a transitional phase which is now over - at least pending the development of the law after a potential Brexit. We know that an adult cannot be habitually resident in a family jurisdiction sense in both London and Warsaw. It would now be very difficult to argue that an adult can be habitually resident in both London and Karachi.

One of the exciting avenues left open for ingenious lawyers to argue in analogous cases
in the future is the nationality-based jurisdiction
of wardship. England is far from being alone in acknowledging that this jurisdiction still exists.
The door has been left open by the Supreme Court in Re B for an argument that British children should be protected by orders made under a nationality-based jurisdiction if appropriate.

It was not necessary for any orders to be made in wardship in this case, because the law relating to habitual residence was modernised and the appeal succeeded. Most certainly this judgment is a starting point in any future consideration of nationality-based orders - again, the previous case law has been freshened up. Time will tell whether policy will allow the law in this area to be developed even further; the international political and other ramifications could be significant.

One of the points made by Reunite in its persuasive submissions to the court was that the modernisation of the law imparted by Re B will allow for negotiations about child arrangements to take place between separating and separated parties, and for there to be mediation, without the prospect of habitual residence and jurisdiction being suddenly lost. The promotion of discussion about amicable solutions between separating parents is
of course a modern and laudable objective, in tune with modern family law practice.

Moreover, we may detect a happy coincidence between policy on the one hand and the facts of
this case on the other hand, when observing and admiring the humanity of this modern Supreme Court judgment.

Simon Bruce is a partner at Farrer & Co @simonbrucelfc www.farrer.co.uk 

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