A look at ‘habitual residence’

The Supreme Court last month issued an interesting ruling on the question of ‘habitual residence’, finding that the High Court had jurisdiction to order the ‘return’ to this country of a small child who has never been present here, on the basis that he has British nationality.

The child, called Haroon in the judgment, was born on 20th October 2010 in Pakistan. His father was born in England and his mother in Pakistan. They married in Pakistan in 1999 and lived in England from 2000. They have four children: two daughters, born in 2001 and 2002, and two sons, one born in 2005 and Haroon. The father and the first three children, who were born in England, have dual British and Pakistani nationality and the mother has indefinite leave to remain in the United Kingdom.

From 2006 the father began to spend a lot of time in Pakistan. The marriage was unhappy and in 2008 the mother moved into a refuge with her three children complaining of abuse. The mother then arranged a three week trip to Pakistan in October 2009, in order to visit her father with the children.

When she was there she was put under pressure by her father, her husband and his family to reconcile with her husband and was forced to give up the children’s passports. She strongly wished to return to England and telephoned the refuge asking for their help to return from February 2010, when she became pregnant with Haroon.

Eventually in May 2011 her family helped her to return to England without the children and she began proceedings for their return in the High Court. On 20th June 2011 all four children were made wards of court and the father was ordered to return them forthwith.

The father challenged the jurisdiction of the court to make orders for the return of the children. The judge found that all four children were habitually resident in England and Wales, as the mother had not agreed that the children should live in Pakistan.

The older children had retained their habitual residence in England, said the judge, and Haroon had habitual residence because he was born to a mother who was being kept in Pakistan against her will.

The father appealed, and the Court of Appeal by a majority allowed the appeal in relation to Haroon only - on the ground that habitual residence was a question of fact (rather than deriving from the habitual residence of the parents) and required physical presence in the country.

The Supreme Court then unanimously reversed this ruling, finding that the court had inherent jurisdiction to make the orders in this case on the basis of Haroon’s British nationality.

However, it sent the case back to the original judge, for him to consider as a matter of urgency whether it was appropriate to exercise this exceptional jurisdiction.

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