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Supreme Court hears appeal concerning habitual residence in child abduction case today

Reunite, CFAB and The Centre for Family Law and Practice join in as interveners.

On the 22nd and 23rd July the Supreme Court will hear the mother's appeal from the judgment in Re A, reported in the Court of Appeal as ZA & Anor v NA [2012] EWCA Civ 1396.

Reunite, CFAB and The Centre for Family Law and Practice have intervened in the case at this Supreme Court stage.

The case concerns the habitual residence of H, who was born in Pakistan and continued to reside there with his father. H's mother lives in England.

Following the parties' separation, the mother took the three older children (all of whom had been born and raised in England) on holiday to Pakistan, to which the father had returned. Whilst there, the mother was forced to resume the relationship and she and the children were prevented from returning to the UK. A fourth child (H) was born. Some months later, the mother escaped without the children.

Once in the UK, she obtained orders (ex parte) for the children to be returned, underpinned by a declaration that all four were habitually resident in the jurisdiction of England and Wales.

The father's challenge to the jurisdiction of the court was heard by Parker J who rejected it and repeated the order for the children's return and reaffirmed the declaration on the habitual residence of the children.

The father and children's uncle appealed. The Court of Appeal, comprising Thorpe LJ, Rimer LJ and Patten LJ, found in respect of the older children that the original order and that of Parker J were unimpeachable and that the children's habitual residence was in England and Wales.

However, the court split in its determination of the habitual residence of H, born in Pakistan. This issue was the subject of a review of existing case law, including consideration of the inter-relationship between the relevant ECJ and domestic authorities.

Patten LJ concluded that the need for "multifactorial" enquiries as to the relevant circumstances of each case was not inconsistent with there being some limits to the concept of residence and that the construction of a rule whereby new born babies could be presumed to take on the habitual residence of the custodial parent(s) was to be resisted. He concluded that he could not, at the moment, envisage any case in which a finding of habitual residence could be factually justified in respect of a child who was born and remained abroad.

He disapproved the decision of B v H, in which Charles J held that a child was habitually resident in England and Wales though he had never been there, and found that the orders in relation to H had been made without jurisdiction and must therefore be set aside. Rimer LJ agreed with Patten LJ.

Thorpe LJ dissented in respect of H, concluding that H took his mother's habitual residence at birth. He considered that "the defeat of abduction must be supported" and that this case fell "narrowly on the right side of an important boundary.

In order to view the Court of Appeal judgment and a summary of it, please click here.

James Turner QC of 1 King's Bench Walk and Alistair Perkins and Hassan Khan both of 4 Paper Buildings (instructed by Dawson Cornwell) act for the appellant mother. Henry Setright QC of 4 Paper Buildings and Edward Devereux of Harcourt Chambers (instructed by Thompson & Co.) act for the respondents. For the interveners Richard Harrison QC and Peter Newman of 1 King's Bench Walk (instructed by Bindmans) act for Reunite; Alex Verdan QC, Jacqueline Renton and Michael Gration all of 4 Paper Buildings (instructed by Farrer and Co) act for CFAB; and Baroness Scotland QC, Ruth Kirby and Rachel Chisholm all of 4 Paper Buildings (instructed by Hodge Jones and Allen) act for The Centre for Family Law and Practice.

Although some Supreme Court proceedings are broadcast live, this hearing is not available by that medium.