18 September 2019 - Article
Last week saw the publication of a Supreme Court judgment in a case with an unusual background which has intriguing implications for jurisdictional issues concerning children. The facts are so unusual because although the child (B) had been born in the context of a stable same-sex relationship, the operation of law at the date of B's birth, which was prior to 2009, meant that her non-biological mother, whom B called 'Mimi', did not have parental responsibility for her. Therefore when the mother secretly relocated with B for a new life in Pakistan, two years after the relationship acrimoniously broke down, B's removal from the jurisdiction of England and Wales was not unlawful. At first Mimi was unaware of B's departure from the jurisdiction and unable to contact the mother, leading her to make applications under the Children Act 1989 for shared residence and contact. At the time of this application B had been in Pakistan for 9 days. Subsequently, on learning of B's whereabouts, Mimi also made an application for orders under the court's inherent jurisdiction for B to be made a ward of the court and returned to England. The High Court and later the Court of Appeal decided that there was no jurisdiction for the Courts in England and Wales to make orders in relation to B because she was neither habitually resident nor present in this jurisdiction at the time of Mimi's applications and the circumstances of B's case were not sufficiently 'dire and exceptional' to trigger the inherent jurisdiction of the Court. This was the case, even though it was accepted that society's attitude towards homosexual relationships in Pakistan would prevent Mimi from presenting her case there. The Supreme Court disagreed with this outcome and by a majority judgment (3 to 2) held that B's habitual residence in England and Wales was still continuing at the date of Mimi's application. In the lead judgment, Lord Wilson took a pragmatic approach, finding it unacceptable that the consequence of the decisions reached in the lower courts would have allowed the mother by the 'clandestine removal' of B to place the child's interests beyond all judicial oversight. Whilst the test for the acquisition of a child's habitual residence is the same across the EU and will be judged on 'the degree of integration by the child in a social and family environment', Lord Wilson has highlighted the need for Courts to also consider the circumstances which give rise to the child losing their habitual residence. A child's habitual residence is not severed by the physical act of leaving, instead 'disengagement' from a country is a process which will take place concurrently with a child's integration into their new life. Lord Wilson used the analogy of a see-saw, where the moment a child's roots in one place go down, their roots in another place go up. It will be in exceptional circumstances that a child will be left in limbo without a habitual residence. Where there is a choice between saying that a child has no habitual residence and saying that they do, the court should make the decision which best serves the interests of the child, which will invariably be the latter. Implications As already mentioned, this case was unusual because the law at the time did not automatically grant parental responsibility to the partner in a same-sex relationship who had been consensually involved in the mother's fertility treatment. However, even today there may be situations which arise where an individual is a 'central figure' in a child's life, akin to a second parent, without having acquired 'parental responsibility'. One such situation might be a sperm donor who has not legally formalised his involvement, but who plays the role of a second parent, enjoying frequent contact and a close relationship with the child, it will depend on the circumstances. In this case Lord Wilson described Mimi as probably 'the second most important figure' in B's life. If you are considering a lawful move abroad, it is almost certainly in everyone's interests for children to maintain relationships with those who are closest to them. If at all possible you should share your plans with the other person who has a central or parental role in your child's life and discuss ways in which contact with them can continue, perhaps by skype and email and depending on your circumstances, holiday visiting. If the relationship is difficult, you may wish to consider mediation, an agreement on how contact will work when you move abroad may prevent lengthy and costly litigation. Any move abroad requires significant planning, especially when a child is involved. The time taken to acquire habitual residence in a new country will be affected by the arrangements that are put in place for arrival, so if the living arrangements are temporary and the child is not enrolled in school, the process of integration will be slower than if those arrangements are in place. If you play a central role, akin to a second parent in the day to day life of a child, it may be appropriate for you to have parental responsibility. It may be possible to agree this, or it may be possible to make an application to the Court. This will depend on the circumstances in your individual case. However, whatever the circumstances, this case is further confirmation that when the Courts in England and Wales are involved, the best interests of the child are considered to be of the highest priority.