The High Court can order the “return” of a child to the UK despite that child never having set foot on British soil, the Supreme Court has held.
In the matter of A (Children) [2013] UKSC 60 concerned the future of Haroon, who was born in Pakistan in 2010. His father and three elder siblings have dual British and Pakistani nationality, and his Pakistani mother has indefinite leave to remain.
The marriage was unhappy and the mother moved into a refuge with the children in 2008, complaining of abuse. She went to Pakistan on holiday with the children in 2009, where she came under pressure to reconcile with her husband and was forced to give up the children’s passports. She then became pregnant with Haroon, but eventually returned to England alone and lodged proceedings for the return of her children. The children were made a ward of court.
The High Court found that all four children were “habitually resident” in England and Wales and could be returned. The Court of Appeal allowed the father’s appeal on Haroon only, on the grounds habitual residence was a question of fact. Therefore, the child did not automatically assume their parents’ habitual residence.
At the Supreme Court, all but one of the Justices held that physical presence in a country at some time is a prerequisite to acquiring a habitual residence and therefore Haroon was not habitually resident in England and Wales.
However, the Justices relied on the old common law principle of parens patriae to unanimously allow the mother’s appeal.
Lady Hale, in a separate, non-binding, summary of the case issued with the judgment, said: “Under the law of England and Wales, the high court has jurisdiction to exercise the ancient power of the Crown as parens patriae over those who owe it allegiance, that is, over British nationals. For most types of order, that jurisdiction was taken away by the Family Law Act 1986, but not for the simple order to bring the child to this country which was made in this case.”
