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In the Matter of B (A Child): Habitual Residence and the Child-Centric Approach to Jurisdiction

Richard Harrison QC, Madeleine Reardon and Jennifer Perrins, all of 1 King's Bench Walk, and Simon Bruce, Partner, of Farrer & Co, analyse the judgment in B (A Child) [2016] UKSC 4 and the key issues: (i) loss of habitual residence; (ii) the relevance of parental status in cases involving same-sex couples; and (iii) the parens patriae jurisdiction.

Richard Harrison QC, 1 King's Bench WalkMadeleine Reardon, barrister, 1 King's Bench WalkJennifer Perrins, barrister, 1 King's Bench Walk

Simon Bruce, partner, Farrer & Co

 













Richard Harrison QC, Madeleine Reardon and Jennifer Perrins, all of 1 King's Bench Walk, and Simon Bruce, Partner, of Farrer & Co


Introduction

Habitual residence lies at the heart of the 1980 Hague Convention on the Civil Aspects of International Child Abduction ('the 1980 Hague Convention'), and is the cornerstone of jurisdiction in international child law.  Yet despite the centrality of the concept, its definition and application have always left much room for argument; and although it is often described as 'a question of fact', it has generated large volumes of authority at the highest level. 

The latest international child abduction case to reach the Supreme Court is In the matter of B (A Child) [2016] UKSC 4.  This judgment contains significant new guidance on the law of habitual residence; it also leaves a number of interesting questions ripe for future argument.  It has revolutionised the law relating to loss of habitual residence in a way that will offer enhanced protection to children worldwide.  The case is notable in part because it is the first child abduction case in which the parties are same-sex parents. However, the decision is of universal importance, and in particular will assist all parents, heterosexual or otherwise, who lack formal legal rights in respect of their children.  

In this article, we will provide a summary of the facts and issues in the case, before analysing the three topics arising from the judgment that merit particular attention, namely: (i) loss of habitual residence; (ii) the relevance of parental status in cases involving same-sex couples; and (iii) the circumstances in which the court should exercise jurisdiction on the basis of the nationality of the child (referred to, archaically, as the parens patriae jurisdiction). 


The facts

Re B concerns a girl, 'B', who is now aged 7.  She was taken to live in Pakistan by her biological mother ('RM') on 3 February 2014, without the knowledge or consent of RM's former partner ('AM'), whom B regarded as her other mother.  The case is all about AM's attempts to secure B's return.

A key feature of the case is that AM is not B's legal parent, and does not hold parental responsibility for her. Thus, the removal of B from the jurisdiction by her only legal parent – RM – was neither unlawful as a matter of criminal law (see section 1 of the Child Abduction Act 1984), nor 'wrongful' for the purposes of the jurisdictional provisions in Article 10 of Council Regulation (EC) No 2201/2003 (Brussels IIR).  There was some dispute between the parties as to whether AM lacked formal rights simply because B was born before the change in the law which enables a child to have two legal female parents, or whether AM had in fact chosen not to take any steps to improve her legal status.  Whatever the reason, it left AM in a legally weak position following the removal to Pakistan. 

AM is a British woman of Kenyan Indian / Indian descent.  RM is a British woman of Pakistani descent.  They formed a relationship in July 2004 and began cohabiting shortly thereafter.  In 2007 they were assessed as a couple as recipients for fertility treatment.  RM fell pregnant after one course of IUI treatment.  On 5 April 2008, "B" was born; she is a British Citizen.

Following B's birth, the parties continued to live together in their jointly owned home, and co-parented B.  AM took (inappropriately named) 'paternity leave' following the birth, while RM took maternity leave.

On 11 December 2011, when B was three and a half, the parties separated in acrimonious circumstances and AM left the family home. Following the separation, AM had regular contact with B, initially on a weekly basis.  However, the contact was reduced by RM to fortnightly in May 2012, with a further reduction in April 2013 to one two hour period every three weeks.

In July 2013 RM was made redundant.  RM's case was that it was at that point that she began to consider relocating to Pakistan.  RM travelled to Pakistan in November 2013 (without B).  Her case, which was accepted by the judge at first instance, was that during this trip she was offered an opportunity to work in partnership with a friend. In December 2013, following her return to England, she finally made the decision to relocate to Pakistan with B. None of this was communicated to AM.

Meanwhile, in October 2013 AM, who was completely in the dark about RM's developing plans, had written to RM proposing a shared residence order and threatening to make an application to court if this were not agreed.  RM responded to the letter by agreeing to attend mediation. The parties attended their first appointment on 15 January 2014, by which time of course RM had already made up her mind to relocate to Pakistan and to conceal this fact from AM.  As Lord Wilson memorably observed during the hearing in the Supreme Court, RM's participation in the mediation was clearly 'a charade'. A further session of mediation was booked for 5 February 2014.

On 3 February 2014 – two days before the scheduled mediation session – RM left England with B, arriving in Pakistan on 4 February 2014. It was a clandestine removal.  AM had no inkling about what had happened until some time later. 

Following RM's failure to attend the second mediation session, AM issued an application for a shared residence and contact order on 13 February 2014.  At this stage she believed that RM and B were in England but, as she did not know their whereabouts, she sought various disclosure orders to locate them.  In May 2014, RM instructed solicitors, and disclosed that she was in Pakistan.  She contested the jurisdiction of the English courts, alleging that by the date of issue of proceedings – 10 days after her departure – B had lost her habitual residence in England. 

AM then issued further applications under the inherent jurisdiction, seeking the summary return of B to England. She relied upon the parens patriae jurisdiction as an alternative basis for jurisdiction in the event that, as RM claimed, B's habitual residence had been lost by the relevant date. 


The first instance hearing before Hogg J

The matter came before Hogg J at the end of July 2014.  RM failed to attend the hearing, but gave evidence by telephone link.  AM gave oral evidence.

Hogg J dismissed AM's applications, holding that the court had no jurisdiction to deal with the matter. She found that RM had removed B from England with a genuine intention to relocate and make a new life for herself and B in Pakistan; she found that RM was not purely motivated by a desire to frustrate B's relationship with AM.  She therefore held that both RM and B had lost their English habitual residence upon departure – although they had probably not yet acquired a new habitual residence in Pakistan by the time the proceedings were issued some 10 days later.  Hogg J relied upon the well-known passages from the speech of Lord Brandon of Oakbrook in In re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562 ('In re J') to support her conclusions as to the immediate loss of habitual residence. 

Although it does not appear that Hogg J was asked to make a specific finding about this, it is relevant to note that she did not seem to regard AM as one of B's parents.  AM was described in the judgment as a 'significant person', and equated to wider family members or friends who might want to stay in touch with a child following a relocation.  Hogg J asked herself whether 'B's wish to remain in touch with [AM] was enough to sustain a continuation of her habitual residence'.  She characterised the case as 'at heart…a contact application', and even suggested that if the case had come before the courts as a leave to remove application by RM, it would have stood a very good chance of success; in her view the likelihood was that only indirect contact with AM would have been ordered. 

In dealing with the alternative application to invoke the parens patriae jurisdiction, Hogg J noted that societal attitudes in Pakistan made it unlikely that AM could bring an application in the courts there, and that it would be difficult for RM to be open about her sexuality or about B's background.  However, she decided that the circumstances of the case were not sufficiently 'dire and exceptional' to justify the use of the nationality-based jurisdiction.  She also emphasised again that the case was in reality 'just' a contact application. 


The Court of Appeal hearings

The proceedings in the Court of Appeal took almost a year to conclude. On 6 August 2015 the Court of Appeal in [2015] EWCA Civ 886 (The President, Black and Underhill LJJ) dismissed the appeal.

The Court of Appeal held that Hogg J had been entitled to conclude that B's habitual residence had been lost on departure from England. They rejected an argument raised by Reunite that under the modern law a child's habitual residence will not normally be lost until a new one has been acquired.  They were critical of what Black LJ described as attempts by AM and Reunite to introduce 'glosses' or 'sub-rules' into the test for determining habitual residence.  Black LJ held that although it may be the case that more often than not, a child will have an identifiable habitual residence, 'that will be because the facts tend to be that way and not because the courts impose upon themselves the artificial discipline of only finding it otherwise in exceptional cases' [§29].  She was equally unimpressed with the argument that AM's parental status was a relevant consideration, saying that 'anything which encourages satellite litigation over labels is to be avoided' [§29].  The Court of Appeal roundly rejected the suggestion that it was appropriate to exercise a nationality-based jurisdiction, holding that while they did not wish 'to lay down any rigid boundaries…the present case does not approach the very high threshold necessary to justify the exercise of the jurisdiction' [§53 – emphasis added]. 

In contrast to the considerable delay in the proceedings before the Court of Appeal, the final appeal to the Supreme Court was expedited: permission was granted on 3 November 2015; the appeal was heard in early December 2015 (by a court comprising Hale, Clarke, Wilson, Sumption and Toulson JJSC); judgment was delivered in January 2016.


The judgment of the Supreme Court

The Supreme Court allowed the appeal by a majority of 3:2.  The two family Justices (Lady Hale and Lord Wilson) together with Lord Toulson formed the majority.

Issue (i): Habitual residence
The most significant aspect of the judgment is the acceptance by the majority of the Supreme Court that cases in which a child has no habitual residence will be the exception, expressly overruling the earlier House of Lords decision in In re J.  Lord Wilson describes the issue in the first paragraph of the judgment thus:

'It has been hard-wired into the mind of many family lawyers in England and Wales that, were a parent to remove a child from a state in which they were habitually resident to another state with the settled intention that they would cease to reside in that first state and make their home in that second state, the child would be likely to lose habitual residence in the first state immediately upon the removal and, until later acquiring habitual residence in the second state, would be likely not to be habitually resident anywhere. The absence of habitual residence anywhere places a child in a legal limbo. The main question raised by this appeal, which arguably the lower courts were not free to answer, is whether the expectation of family lawyers about the point at which habitual residence is lost requires adjustment in the light of this court's recent adoption of the European concept of habitual residence. The court's answer to this question should enable it to determine whether the lower courts were correct to conclude that, on the relevant date, the child at the centre of this appeal was in the limbo to which I have referred.' [emphasis added]

The crucial passages of Lord Wilson's judgment begin at §30.  He refers to the 'modern international primacy of the concept of a child's habitual residence', and expressly accepts Reunite's submission that it is not in the interests of children 'routinely to be left without a habitual residence'.  He then reiterates that the concept 'should be consonant with its international interpretation'.  Lord Wilson points out that, prior to this case, two of the historic 'rules' about habitual residence had already been expressly overruled as a result of the recent developments of the law: first, the principle that where two parents hold parental responsibility for a child, neither one can change the child's habitual residence by unilateral action (overruled in In Re R (Children) [2015] UKSC 35, [2016] AC 760); and secondly, the principle that a child's habitual residence will follow that of the parent with whom he lives (a 'rule' that must be 'relaxed' following In re LC (Children) [2014] UKSC 1; [2014] AC 1038). 

The famous passage from Lord Brandon's speech in In re J, the validity of which lay at the heart of this appeal, is in the following terms:

'…there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B.  A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it and to take up long-term residence in country B instead.  Such a person cannot, however, become habitually resident in country B in a single day.  An appreciable period of time and a settled intention will be necessary to enable him or her to become so.  During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.'

In considering that passage, Lord Wilson notes that the European test for habitual residence requires 'some degree of integration by the child in a social and family environment', and that it is now probably 'too absolute' to say that an 'appreciable period of time' is necessary before a new habitual residence is acquired, or to say that habitual residence cannot be acquired in a day.

Lord Wilson's ultimate conclusion (at §45]) is that '… the modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one.' He offers the analogy of a see-saw: as the child puts down roots in the new state, his roots in the old state are pulled up until he reaches the point where he reaches the required state of disengagement from it.  Crucially, a court assessing a child's habitual residence needs to perform a comparative analysis of what has been lost in the old state, and gained in the new one.

Lord Wilson provides the following further guidance, which he stresses is not to be converted into a 'gloss' or 'sub-rule', but which will no doubt be followed dutifully by practitioners and courts in the coming years:

(a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

(c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it. 

Lord Wilson concludes by consigning Lord Brandon to history, observing that his approach 'afforded to parental intention a dispositive effect inconsistent with the child-focussed European concept…and the result…was to consign a large number of children to the limbo of lacking any habitual residence in circumstances in which the modern law expects such a result to be exceptional, albeit conceivable' [§47]. 

As Hogg J had followed the wrong approach, Lord Wilson conducted his own factual analysis and determined that on the relevant date B remained habitually resident in England. His comparative analysis of B's situation in England and Pakistan [§50] will surely be consulted in the future as an illustration of how the legal guidance referred to above applies to a particular set of facts. As a result of his conclusions on habitual residence (supported by the majority) the appeal was allowed and the case remitted for further consideration.

Issue (ii): Parental status
Lord Wilson does not attempt to determine the factual issue as between AM and RM concerning her status or otherwise as a 'parent'.  However, at §2, he observes that AM 'has strong claims also to be described as a mother'.  This can only be a reference to her status as a 'psychological parent' to B, given that, as was well-known, she has no legal rights. 

There are a number of ways in which both members of a same-sex couple can become the legal parents of a child.  These include by joint adoption [The Adoption & Children Act 2002]; by parental order following surrogacy [by way of parental order under s54 of the Human Fertilisation & Embryology Act 2008]; or for a lesbian couple, by way of the second female parent provisions of the HFEA 2008 [ss42-47].  A second female parent may also obtain parental responsibility for a child in the same way as an unmarried father, by agreement or application [s2(2A)(b), 4ZA & 12(1A) CA 1989].

However, there are also many same-sex couples who become parents but who do not go on to regularise their legal position, such as the parties in this case.  A full discussion of this topic is beyond the scope of this article, but the important point to make is that our case-law has developed to recognise the concept of the 'psychological parenthood'.  This category of parenthood can fill, in an appropriate case, what would otherwise be an undesirable legal gap. 

In a welfare context, the concept of a 'parent' encompasses a wide spectrum of family structures including same-sex couples, families with more than two parents and families where the child(ren)'s legal, biological and social/ psychological parentage do not overlap. The leading domestic authorities on the issue of parenthood generally are the two House of Lords / Supreme Court cases of In Re G (Children) (Residence: Same Sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305; and In Re B (A Child) (Residence: Biological Parent) [2009] UKSC 5, [2009] 1 WLR 2496.  These two cases demonstrate that neither the legal status of parenthood nor biological parenthood is determinative when it comes to issues concerning the care and upbringing of children. Where the issue relates to welfare, the word 'parent' is to be given a broad meaning. 

In this jurisdiction, there is no judicial or statutory definition of what it means to be a psychological parent. The only statutory distinction is between a legal parent and a non-parent; with an overlapping distinction drawn between those with and without parental responsibility. Nevertheless the courts have developed a concept of 'psychological parenting,' in various contexts, and commonly within same-sex or alternative families. The rationale for this focus on psychological parenting is that, as Baroness Hale made clear in Re G, in a welfare-based jurisdiction the family unit in which the child lives is likely to be of more relevance to her day-to-day wellbeing than either her biological or her legal parentage.  The focus in the authorities on the child's experience of being parented, rather than on the legal status of the parent or a biological tie, is also consistent with the Strasbourg jurisprudence which has permitted psychological parents/ parental figures to establish 'family life' for the purposes of Article 8 of the European Convention on Human Rights ("ECHR").  In the ECHR cases, it is more likely that a person playing a 'de facto' parental role will be able to establish 'family life' than a biological parent who has established no actual relationship with the child.

In our view, the question of a person's parental status may be highly relevant in international cases such as In the matter of B.  The Supreme Court has once again reminded us that we must examine habitual residence using the child-focused European test, and our older domestic authorities must either be ignored, or at best, treated with caution.  The removal of emphasis upon legal parenthood / exercise of parental responsibility will clearly be a welcome development for parents in the same position as AM.  If we are to look at habitual residence from the child's perspective, the factual reality of their day-to-day life is what must be assessed.  We would venture to suggest that when assessing a child's degree of integration into a 'social and family environment', it will usually be necessary to consider who makes up that 'family environment', including most importantly by identifying the child's parents (legal, biological or psychological), and analysing the child's relationship with them.  Similarly, when performing the comparative analysis described by Lord Wilson at §50, a child is likely to maintain a stronger attachment to a jurisdiction where one of her parents remains. 

Thus, in a case where there may be a real issue over the identity of a child's parents, it will be advisable to explore this in the evidence, and if necessary seek a specific finding as to a party's parental status. 

In the Court of Appeal and the Supreme Court, Reunite submitted that the question of parental status might be relevant not just to the habitual residence question, but also to the decision whether to exercise the parens patriae jurisdiction.  This is because it would be more justifiable to use this power to protect the relationship between a child and her parent (as opposed to just a friend or wider family member).  AM further relied upon both her own and B's Article 6 & 8 ECHR rights, and invited the court to operate the principle of forum necessitatis because of the impossibility of AM pursuing litigation in respect of B in Pakistan. 

As will be discussed below, the Supreme Court's comments on the parens patriae issue are obiter, because of the decision on habitual residence.  However, the judgment of the majority is bound to be highly persuasive in future cases where the issue arises.  Furthermore, in his dissenting judgment, Sumption LJ said this [§85]: 'it seems plain that if an application had been made by, say, an aunt or sister of the respondent, there could be no ground for acceding to it.  It is necessary to make this point in order to remind ourselves that it is to protect her relationship with the child on the basis that she should be regarded as a co-parent that the appellant is invoking the inherent jurisdiction of the court'.  It is still therefore probably correct to say that in a case such as In the matter of B, where there is a dispute, parental status should be determined as part of the decision whether to exercise the jurisdiction.  A similar approach was taken by Peter Jackson J in Ms L v Ms C (Applications by Non-Biological Mother) [2014] EWFC 1, where the court made a declaration that 'family life' existed between a child and her non-biological lesbian mother.    

Issue (iii): Parens patriae
The decision on habitual residence meant that there was no need to deal with the alternative application to invoke the parens patriae jurisdiction.  However, Lord Wilson, Lady Hale & Lord Toulson still make some brief remarks on that aspect of the case, and they all agree on the following points:


The dissenting judgments

An interesting feature of the decision in In the matter of B is the disagreement between Lord Wilson and Lord Sumption.  Unusually at §54-56, Lord Wilson provides a response to the dissenting judgment and opines that Lord Sumption has misunderstood his ruling on the loss of habitual residence. 

Lord Sumption says in his judgment that the only ground for having allowed the appeal seems to be that it is 'highly unlikely, albeit conceivable, that one habitual residence will be lost before another is acquired'.  He makes a complaint that may sound familiar to practitioners in this area: 'I remain uncertain whether [Lord Wilson's decision] is said to be a principle of law or a proposition of fact.'

As Lord Wilson says, however, his judgment is more subtle than that – he explains the point as being that 'the modern concept of habitual residence operates in the expectation that an old habitual residence will be lost when a new one is gained'.  Hence, it is not factually impossible for there to be a case in which a child has no habitual residence – it is just that such cases will be the exception to the norm. As Lord Wilson points out at §1, it was previously commonplace for children to be left with no habitual residence as soon as the aeroplane they had boarded left the country.  He references this phenomenon again in §56 when he says this in answer to Lord Sumption's criticisms:

'Both Lord Sumption at para 70 and Lord Clarke at para 92 consider that it makes no sense to regard a person as habitually resident in England and Wales if she is not resident there at all because she has left it to live permanently elsewhere. With respect, my view is different. For me it makes no sense to regard a person's intention, in this case a parent's intention, at the moment when the aeroplane leaves the ground as precipitating, at that moment, a loss of habitual residence. At all events, and more importantly, I remain clear that such is not the modern law.'


Conclusion

The decision in this case brings clarity to the law on habitual residence.  It will be particularly welcome to parents who lack formal legal rights in respect of their children, in particular unmarried fathers without parental responsibility. The change in the law means that such fathers will no longer be vulnerable to a capricious decision by a sole legal parent unilaterally to remove a child to another jurisdiction. The decision also offers enhanced protection to same-sex parents such as AM, and to others fulfilling parental roles while lacking formal legal rights.  It provides greater certainty to parents whose relationship breaks down shortly after a joint move to another jurisdiction.  Where previously judges might normally have held that in the aftermath of a move children had no habitual residence at all, this will no longer be the case: the courts will strive to find an habitual residence for a child and only exceptionally hold that it is not possible to do so.  To paraphrase Lord Wilson, there will now be far fewer children condemned to the jurisdictional limbo created by Lord Brandon.  The Supreme Court has come to a decision that is informed by, and will serve, the interests of children generally.  

Parents are now overwhelmingly encouraged to engage in negotiation and mediation to resolve their disputes.  The court process can cause disputes to escalate, and parties to become entrenched in their positions, neither of which is consistent with the welfare of children.  A system of law which too readily allowed a parent acting unilaterally to bring about the loss of their child's habitual residence would be a strong deterrent to mediate, and the decision in In the matter of B should therefore create a significant new incentive to parents to resolve their difficulties consensually. 

An unresolved issue raised by this authority – which will need to be tested in a future case – concerns the boundaries of the parens patriae jurisdiction. The majority decision, though persuasive, was obiter dicta.  It will be interesting to see how it is applied by the courts. 

As a result of the majority's decision on habitual residence, and the continued enhancement of the primacy of habitual residence in matters of jurisdiction (most recently by the coming into force of the 1996 Hague Convention), cases in which the parens patriae jurisdiction could be used will probably be rare.  However, when the issue does arise, the majority decision in In the matter of B might help to push further at the door which A v A seemed to leave ajar.

14/2/16