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Supreme Court Allows Gay Parent’s Appeal in International Child Custody Case

The Supreme Court gave their decision today on the landmark case of Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 that was heard on the 8th and 9th December 2015.

On a majority of 3:2, the Court allows the Appellant’s application for leave to apply for (what was then) a shared residence and/or contact order under the Children Act 1989.  This was on the basis that the child concerned remained habitually resident in England in February 2014, despite this being when she was removed from the country.  It was also the first international case concerning a child of a same sex couple.
The British birth mother was one of a lesbian couple. After separating from her partner, she took her seven year old British child to live in Pakistan in February 2014 without the non-biological mother’s consent. The non-biological mother had been seeking a shared residence order, applied to the Court to return the child to England when she discovered her removal. She proceeded on the basis that the child was habitually resident in England when she began proceedings under the Children Act a few days after the child had been taken to Pakistan. Later in proceedings she also made the child a ward of the English court so that the court could make orders under the nationality jurisdiction.
The Court allowed the appeal by the child’s non-biological mother on the basis that the removal of the child to Pakistan did not cause the child to lose her English habitual residence and therefore the English Court retained jurisdiction to make decisions regarding her upbringing.
Previous cases saw children in similar situations losing their “habitual residence” once they left the country, which meant that the English Court would lose jurisdiction in being able to make decisions about the child concerned. Therefore, from now on, the child is unlikely to lose his or her pre-existing habitual residence at the same time as an abducting parent.  This demonstrates a modern approach by the Court and means that any child concerned in such a situation in future is likely to be protected much more quickly, by being considered as resident in the country from which he or she was taken.  However, each case will of course continue to be considered on its own facts.
If you need assistance regarding the arrangements for a child please contact our Family Law Team.