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H v R (Habitual Residence in Pakistan) [2021] EWHC 2024 (Fam)

Mr Justice MacDonald considers an application under the inherent jurisdiction for summary return of a 13-year-old child from Pakistan.

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Questions to be determined

1) Is S, a boy of nearly 13 who has been in Pakistan for nine months, habitually resident (HR) in England and Wales?

2) If so, should the court order his return to this jurisdiction?

Background

The parents married in 2007, have three children, S, U (10) and T (4). They separated in February 2021. The mother (M) alleges a history of domestic abuse. Over the years S has spent time in Pakistan, including a period of 11 months in 2016 when he went to school there.

In October 2020 M went to Pakistan for elective surgery, taking S and T with her. F and U joined them for a month in November, when his father was gravely ill. M returned to the UK in February 2021 with T. The parents dispute the basis for S remaining in Pakistan, where he is living with the paternal family. F says that the parents agreed that S should attend school in Pakistan whereas M contends that this was discussed but not agreed and that she was coerced into leaving without S. S was enrolled in  a private school (the one he had attended in 2016) a month before she left. M sent an email to the education authority in England saying that she and F had decided to send S to this school on a trial basis and would bring him back if he did not settle.

Proceedings

M now alleges for the first time that there was an incident in February 2021 when S was touched inappropriately by one of the family's drivers. S has written a letter saying this did not happen and expressing concern that his mother has made it up.

S was interviewed by a Cafcass officer and set out his views very clearly; he said that even before he went to Pakistan with his mother in October 2020 there had been discussions about him attending school there. When his mother left, in February 2021, they had a "big goodbye" and she told him he was "going to be good in school and be an educated man". He was comfortable with the paternal relatives with whom he was staying, settled in his school and secure in his Pakistani heritage. He does not currently wish to return to the UK although he hopes to attend university here.

The Law

A suggestion by M's counsel that the approach to HR has changed since Brexit was not pursued; the court was clear that "there is nothing to suggest that the test for habitual residence, as distinct from the legal framework within [which] that concept subsists, has changed". MacDonald J briefly summarises out the well-known caselaw at §17-19.

He goes on to consider the proper approach to applications for summary return under the inherent jurisdiction at §20-24 with particular reference to Re NY (A Child) UKSC 49. He notes that nobody suggests in this case that it is unreasonable to invoke the inherent jurisdiction, and that the question of summary return turns on welfare. It is appropriate to consider the first six items on the CA1989 "welfare checklist". In cases such as this, where there are allegations of domestic abuse, the court must consider whether, and if so in what way, it should conduct an inquiry into the allegations.

Discussion (§25-37)

• Before leaving for Pakistan in October 2020 S was HR in England and Wales.

• A child will take longer to lose HR in a country he or she has left if they had strongly integrated ties as compared to a child whose integration is more tenuous.

• S was born and primarily brought up here and spoke English as his first language, but he wasn't in school in October 2020 following a move and his homelife, according to M, was regularly disrupted by domestic abuse.

• Prior to October 2020 S had durable ties to Pakistan and has spent extended periods there, which made it likely that he would integrate more quickly into social and family life there than if it was a country he had never visited.

• The court found that the parents had agreed for S to be educated in Pakistan, subject to him settling.

• He is settled and well cared for; there is no basis for a finding that he had been inappropriately touched as M claims.

• S's strongly expressed wishes and feelings demonstrate that he considers himself to be integrated in a social and family environment in Pakistan; given his age and understanding his informed wishes are capable of indicating a significant level of integration.

• Accordingly, the court found S to be HR in Pakistan.

Conclusion

Given the finding on HR the court has no jurisdiction and the mother's application under the inherent jurisdiction was dismissed.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII