Establishing Child’s Habitual Residence
Both parents were British nationals and were in a same sex relationship from 2004 to 2011. In April 2008 the mother gave birth to B, using an unknown sperm donor. Shortly before B’s birth the applicant and the mother bought a house in joint names and lived there with B, who had a loving relationship with both of them as her parents. In December 2011 the relationship broke down. The applicant continued to have some contact with B but the contact was reduced by the mother. On 3 February 2014, without the applicant’s knowledge, the mother took B to Pakistan with the intention of living there permanently. On 13 February 2014, the applicant, still unaware that B had been taken to Pakistan, issued proceedings for shared residence/contact. In May 2014 the applicant discovered that B and the mother had gone to Pakistan.
The judge refused the application as the court had no jurisdiction as B had lost her habitual residence in England on arrival in Pakistan and B’s wish to remain in contact with the applicant not being enough for the continuation of her habitual residence in England.
On appeal to the Supreme Court the question was whether B had by then achieved the requisite degree of disengagement from her English environment, and highly relevant to the answer would be whether she had by then achieved the requisite degree of integration in the environment of Pakistan. The cumulative effect of all the circumstances relating to B’s removal to Pakistan, including the fact that she had lived in England throughout her life and had never been to Pakistan, that her language was English and that the applicant, who was the second most important figure in B’s life and with whom she had retained significant emotional links, had been left behind in England, led to the conclusion that B had still retained her habitual residence in England at the time when the application had been issued. Therefore the application could and should proceed.
Hamilton Ross have a dedicated team here to help with residence and contact. If you are having difficulty or just need some advice please make an appointment with one of our specialised solicitors.
Author: Fiona Stewart, LLB, Dip LP
The views expressed are those of the author and do not necessarily reflect the views of the firm.View all →