Loss of Habitual Residence: Legal Limbo and the Modern Law

In Re B (A Child) [2016] UKSC 4 (3 February 2016)

Perhaps facts never get more interesting than they are in this case. Then again, neither do laws. Under section 377 of the Pakistan Penal Code (Act XLV of 1860), “carnal intercourse against the order of nature with any man, woman or animal” constitutes an “unnatural offence” and “penetration is sufficient to constitute the carnal intercourse necessary to the offence.” The origins of this crime, authored by Lord Macaulay, are clearly rooted in the vestiges of British imperialism and the maximum punishment is life imprisonment but lesser sentences/fines may be imposed instead. “The absence of habitual residence anywhere places a child in a legal limbo,” remained Lord Wilson’s point of departure in this case about two British women in a same-sex relationship who used an unknown sperm donor of Asian ethnicity and had a daughter known as “B” who was born in April 2008. Though British nationals, the appellant and the biological mother were of Indian and Pakistani origin respectively and had a relationship from 2004 to 2011. The big twist in the story came when B was removed to Pakistan on 3 February 2014 when the respondent lawfully took her to live in that country where they have remained ever since.

The key question raised by the appeal was whether the traditional understanding of the point at which habitual residence is lost needed recalibration because of the Supreme Court’s recent adoption of the European concept of habitual residence. Yet, apart from the trials and tribulations of family law, this case is ultimately also symbolic of the hamstrung relationship between India and Pakistan. Of course the appellant (aged 35) also has a strong claim to being a “mother”, albeit she and the respondent (aged 45) did not enter into a civil partnership. The latter was primarily responsible for B’s care but both mothers were co-parents and raised her by exposing her to family members from either side of the family. Reunite International Child Abduction Centre, the International Centre for Family Law, Policy and Practice and the AIRE Centre intervened in these proceedings, which have a significant LGBTI dimension to them. But irrespective of sexuality, the outcome in the case will inevitably be helpful to all parents – including heterosexuals – who do not have formal legal rights in relation to their children. Despite all the fanfare and applause, the adjustment in the law has clearly come at the cost of demonising the Pakistani woman in the case. From that angle, the decision will inevitably please those who like to bash Pakistan.

Context

Although the judgment leaves many questions unanswered, the outcome of the case has arguably transformed the law on loss of habitual residence in a revolutionary way and will certainly provide increased protection to children worldwide. After having lost twice below, the appellant’s appeal on her application under the Children Act 1989 was allowed by the Supreme Court by a majority of three (Lord Wilson, Lady Hale and Lord Toulson) to two (Lord Clarke and Lord Sumption dissenting) on the basis that B was habitually resident in England on 13 February 2014 (the date the application was issued). The decision, which exposes the tensions in the law and the justices’ diverging ideas, can be applauded for being child-centric but it equally remains open to attack for being excessively euro-centric.

Part of the debate was whether it was possible, in a single day, for a child to lose habitual residence in one country and take it up elsewhere. The court remained divided on the “modern law” of habitual residence. It makes “no sense”, said Lord Wilson, to deem a person’s intention (in this case the respondent’s intention) as “precipitating” a loss of habitual residence at the moment of the aeroplane’s departure. To do so was not the modern law and the court by majority rejected as trite the minority’s proposition that if someone has left England and Wales because she has left here to live permanently elsewhere then it makes no sense to regard her as habitually resident in this jurisdiction. Lord Wilson described the identification of a child’s habitual residence as overarchingly a question of fact.

Although Lady Hale and Lord Toulson fully concurred with his conclusions, they preferred to describe habitual residence as a mixed question of fact and law. They said that they did not understand Lord Wilson to be laying down a rule of law that a child must always have an habitual residence. Indeed, he himself said that he was not putting a gloss on things: “I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him.”

None of the provisions of law allowing both members of a same-sex couple to a child’s legal parents were engaged in this case. For example, there was no joint adoption under the Adoption and Children Act 2002. Similarly, the mechanism available to a lesbian couple through the second female parent provisions of sections 42-47 (cases in which woman to be other parent) of the Human Fertilisation and Embryology Act 2008 was not engaged. Nor was there a parental order following surrogacy under section 54 of the 2008 Act. Moreover, as the second female parent, the appellant had not obtained parental responsibility for B, in the same way as an unmarried father, by agreement or application under the 1989 Act – sections 2(2A)(b), 4ZA and 12(1A).

Background

The appeal turned on whether B lost her habitual residence immediately upon her departure from England and Wales and whether the Court of Appeal was wrong to decline to exercise inherent jurisdiction to order her return to the UK. The appellant lost on both points below. Apart from being B’s biological mother, the respondent is B’s sole legal parent and Hogg J found that they lost their habitual residence when they left for Pakistan and she dismissed the appellant’s applications pursuant to the 1989 Act for shared residence of B or for contact with her and that B should be returned to England and made a ward of court. In the Court of Appeal, [2015] EWCA Civ 886, Sir James Munby PFD, Black and Underhill LJJ also dismissed the appeal. Explaining that “anything which encourages satellite litigation over labels is to be avoided”, Black LJ rejected the argument that the appellant’s status was a relevant consideration.

Although the court declined the invitation to exercise a nationality-based jurisdiction because the present case failed to meet the very high threshold necessary to justify its use, Black LJ explained at para 53 that she and her colleagues were not attempting to specify any “rigid boundaries”. On her Ladyship’s reading, it was unlikely that on its own section 377 creates an offence in relation to sexual acts between two consenting women and she remarked that “the issue of sexual relations between women is very unexplored territory in Pakistani law and has not been tested in the courts”. But then again, how could she be so sure? As she herself accepted, nothing before the court was conclusive on the status of lesbians in Pakistan’s law or on the position adopted by the country’s courts in cases involving lesbianism.

The removal was not wrongful for the purposes of the jurisdictional provisions laid down in article 10 of Council Regulation (EC) No 2201/2003 (Regulation B2R, which does not define “habitual residence”). Nor was it unlawful under the criminal law within the meaning of section 1 (offence of abduction of child by parent, etc) of the Child Abduction Act 1984. The respondent was exercising her parental responsibility and B’s wish to stay in touch with the appellant did not mean that she had to remain in the UK. The respondent had lost her job and even when employed she experienced financial difficulties.

So leaving the UK was simply part of a larger calculated move, which had been made after a fact-finding trip, to start a new life in Pakistan which offered brighter employment prospects, family support and a less stressful life. Bags were packed, goodbyes were said to friends and B and her mother left for Pakistan. The child was in an English speaking school within 15 days of arrival, the respondent rented a two-bedroom flat in Islamabad for a year (though the precise address remains undisclosed). She had entered Pakistan on a three-month visa and her acquisition of a national identity card entitled her to live with B in Pakistan indefinitely.

B was born through intrauterine insemination (IUI) in 2008 after the respondent’s earlier attempts to conceive a child by artificial means in 2001 and 2006 failed and an application for assessment as potential adopters was also withdrawn because the appellant did not feel she was ready for parenthood. The couple jointly mortgaged a property where they lived until December 2011 when the appellant left as their relationship fell apart. “Mama” and “mimi” were apparently among B’s earliest baby words for the respondent and the appellant.

Concerned about the dwindling level of contact with B and any related adverse effects on her wellbeing, when an invitation to engage in family meditation failed, the appellant wrote the respondent a letter before action in October 2013 but the respondent did not respond and continued to privately consider leaving the UK with B for good as she had been made redundant in June 2013. The respondent visited Islamabad and liaised with a friend and conducted reconnaissance about moving there. Love and affection between the appellant and B were not in short supply. For example, Lord Wilson observed that upon return from holiday in Morocco after the trip to Islamabad, on contact with the appellant B handed her a card on which she had drawn hearts and kisses which read: “To mimi I missed you so much love [B]”.

Thereafter, a mediation session took place on 15 January 2014. The respondent did not mention her plans to leave. A further session of mediation was scheduled for 5 February 2014. The respondent did not attend the meeting and the appellant did not know about the “clandestine removal” on 3 February until much later. Lord Wilson called the respondent’s behaviour a “charade” despite the fact that the absence of the appellant’s consent as regards B’s removal did not vitiate it. Though clearly not her real mother, the appellant insisted that B was her daughter.

Notably, it was much later through proceedings issued in England and served at her parents’ address that the respondent’s father, who had until then avoided fully confronting her about her sexuality, came to learn the full extent of her relationship with the appellant and the exact circumstances of B’s conception. The respondent challenged the jurisdiction of the English courts. She argued that by the date of issue of proceedings B had lost her habitual residence in England. Subsequent proceedings were issued, pursuant to the High Court’s exercise of its inherent jurisdiction over her as a British subject, to have B made a ward of court and at once be brought back to England.

The High Court wanted the respondent to attend proceedings in person in England but she said Pakistan was the appropriate jurisdiction to raise any issues connected to B and she attempted to vary the order on the basis that her father was so upset by the information in the English court documents that he threatened to break her legs. Offering to give evidence at the substantive hearing by video-link, she said that attending English proceedings would expose her to harm (even death) from her father and the community. But because the appellant undertook not to disclose the details of the hearing, the application to vary the order was refused. However, the respondent did not attend the hearing and gave evidence on the telephone.

It was a core part of the appellant’s case that because of Pakistani attitudes towards homosexuality, as a same-sex parent she would be unable even to present her case in Pakistan’s courts. She therefore invoked her and B’s rights under article 6 and article 8 ECHR and invited the Supreme Court to use the principle of forum necessitatis as it was impossible for her to pursue litigation in relation to B in Pakistan. On a wider note, she argued that, as a lesbian, the respondent was putting herself and B at risk by living in Pakistan. She further argued that even though B ultimately needed to learn the exact circumstances of her conception and early home life, she would, were the respondent to have told her the truth about them, put herself at risk even by speaking about them in Pakistan.

The Supreme Court

(i) Lord Wilson (Lady Hale and Lord Toulson concurring)

In a radical judgment, Lord Wilson was highly intrigued by the question whether B’s interests had been placed beyond all judicial oversight by her “clandestine removal” by the respondent to Pakistan. His Lordship found the Court of Appeal’s decision “arresting” and said it required “close scrutiny”. He noted that even when the relationship had become beset by acrimony and separation, the appellant had for two years acted as one of B’s parents with the respondent’s consent but now knew nothing of her circumstances, wishes or feelings.

On the issue of habitual residence, agreeing with the first intervener Reunite his Lordship found it contrary to the interests of children to be routinely left without a habitual residence. In A (Reference for a preliminary ruling: Korkein hallinto-oikeus – Finland, C-523/07) ECLI:EU:C:2009:225, the question arose whether children taken into care in Finland were habitually resident there upon their return from Sweden after four years. On their return they lived with their mother on campsites and remained out of school. When the family applied for social housing, they were taken into care and placed in a foster-family for reason that they had been abandoned.

It was held that “habitual residence” within the meaning of article 8(1) of Regulation B2R must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. Nationality, quality of schooling, linguistic knowledge and the family and social relationships of the child in the new state were important factors as were the duration, regularity, conditions and reasons for the stay on the territory of that state and the family’s move there. Because of the CJEU’s decision in that case, Lord Wilson also said that the English courts’ interpretation of the concept of habitual residence should be compatible with its international interpretation.

However, he said at para 32 that B’s case concerned a third strand of habitual residence, i.e. the circumstances in which a child loses his or her habitual residence. He noted that because of In re R (Children) [2015] UKSC 35, it was wrong to propose that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility. In re LC (Children) [2014] UKSC 1 was also mentioned, where it was held that the international interpretation of habitual residence warranted a relaxation of the proposition that a child’s habitual residence would necessarily follow the habitual residence of the parent with whom he lived.

Traditionally, English law invested heavily in parental intention. For example, it was held in the House of Lords’ case of In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 that a person may cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return and settle elsewhere; albeit it was not possible to become habitually resident in the new country in a single day. The Supreme Court mentioned Mercredi v Chaffe (Reference for a preliminary ruling: Court of Appeal, England & Wales, Civil Division, C-497/10 PPU) ECLI:EU:C:2010:829, where the issue was whether a two-month old baby girl lawfully removed by her French mother to La Réunion, remained habitually resident in the UK five days afterwards when the English court became seised of the British father’s application. In Mercredi, the CJEU followed A but used the opportunity to specify that social and family environments of pre-school and school-age children were different and included an assessment of the geographic and family origins of the moving parent and of the family and social connections of that parent and the child with the state to which they had moved.

Lord Wilson said that in A v A (Children: Habitual Residence) [2013] UKSC 60, the Supreme Court found that the criterion embedded in CJEU jurisprudence should govern the English concept of habitual residence. As seen in A, in interpreting the concept of “habitual residence” as laid down in article 8(1) of Regulation B2R, the CJEU places emphasis on there being some degree of integration by the child in a social and family environment. The approach concentrates on the child’s situation and parental intention is merely one relevant factor. Lord Wilson explored the conundrum further by observing that in Marinos v Marinos [2007] EWHC 2047 (Fam) doubt was cast over the approach taken by Lord Brandon in J (where it was suggested that the passage of an “appreciable” period of time was required before a fresh habitual residence could be acquired) as being at variance with modern European law and “it must now be regarded as too absolute.” He also noted that in A v A, Lady Hale (Deputy President) did not accept the proposition that it was impossible to become habitually resident in a single day.

He said the CJEU authorities of A and Mercredi were helpful in two ways as regards identifying the point at which habitual residence is lost. Firstly, in an indirect manner, Regulation B2R (Recital 12) requires that where the interpretation of the concept of habitual residence can reasonably follow two paths, the courts should follow the path perceived better to serve the interests of children. Second, and more directly, although it is conceivable that a child may have no habitual residence, in A both Advocate General Kokott (at para 45) and the CJEU (at para 43) indorsed the view that this could only be so in “exceptional cases”.

The conclusion was that the observation in J was incorrect and it was wrong to draw guidance from that case and Lord Wilson said:

45. I conclude 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. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.

His Lordship provided some guidance but insisted that it should not be a converted into a gloss or a sub-rule.

He explained that where the child’s integration in the old state is quite deep, it might take longer for her to achieve the requisite degree of integration in the new state. Moreover a high degree of adult pre-planning of the move, including pre-arrangements for the child’s daily life in the new state, is likely to accelerate the child’s achievement of that requisite degree. Finally, where all the central members of the child’s life in the old state to have moved with her, her achievement of that requisite degree of integration will be faster whereas if any of the central members remain behind to continue to represent the child’s continuing link with the old state her achievement of that requisite degree will probably be slower (“less fast”).

Lord Wilson said that in ascertaining whether B’s wish to keep in contact with the appellant was sufficient to give rise to a continuation of her habitual residence in England on 13 February 2014, Hogg J had asked herself far too narrow a question. In reality, the correct question to ask was whether B had by 13 February 2014 achieved the requisite degree of disengagement from her English environment – whether she had by then achieved the requisite degree of integration in the environment of Pakistan was highly relevant to the answer. The court concluded by majority that the appellant’s application under the 1989 Act can and should be substantively determined by the High Court (Family Division) because in juxtaposition the cumulative factors warranting the finding that B had not by that date achieved the requisite degree of disengagement from her English environment, as opposed to those factors pointing the other way, compelled the finding that on 13 February 2014 she retained habitual residence in England.

Giving pointers to the future judge, Lord Wilson said that he or she may want to consider whether to make B a party to the application acting by a children’s guardian who could be potentially invited to instruct an independent social worker to interview B in Pakistan with a view to exploring the circumstances of her life there. He explained that if the court finds that B’s interests exact that she should return to England either occasionally to meet mimi or to come back for good with mama, the order could include consequential provision under section 11(7)(d) of the 1989 Act for B to be returned, or caused to be returned, to England for such purposes.

As noted above, Lord Wilson did not accept that if someone has left England and Wales because she has left here to live permanently elsewhere then it makes no sense to regard a person as habitually resident in this jurisdiction. As his Lordship said addressing concerns raised in the dissenting judgments:

56. … 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.

Expanding upon their preference to describe habitual residence as a mixed question of fact and law, Lady Hale and Lord Toulson looked at the respondent’s intention to permanently live in Pakistan from B’s perspective and said that on the relevant date they had been in Pakistan for only nine days, they did not have a home there, and B had not yet been put into a school. It was clear to them that in the event the respondent had second thoughts about the move, the court would probably not have held that the habitual residence of either of them had changed during those few days.

(ii) Inherent Jurisdiction

Because of the majority’s conclusion on habitual residence, there was no need to make a decision on the exercise of the inherent or parens patriae jurisdiction – the “wildcard” of the court’s inherent jurisdiction over children, the basis of which is to be found in In re P (GE) (An Infant) [1965] Ch 568 where it was held that “an infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection”. Strictly speaking the court’s comments on the issue are obiter dicta. In fact, for reason of maintaining brevity in the court’s judgment, Lord Wilson provided an apology for not dealing with the full submissions rendered by the parties and the interveners.

His Lordship agreed with Lady Hale and Lord Toulson’s rejection of the suggestion that the nationality-based jurisdiction falls for exercise only in cases “at the extreme end of the spectrum”. According to Lady Hale and Lord Toulson, inherent jurisdiction is not simply confined to exceptional circumstances. For them it could have been exercised if the court held that B required protection and whilst Lord Wilson concurred with their rationale, at para 53 he left open the question whether or not it would have been appropriate to exercise the jurisdiction in B’s case. His Lordship thought that Hogg J may have distracted herself from addressing the reasons for the court’s usual inhibition about exercising the inherent jurisdiction by analogously asking, whether the circumstances were sufficiently “dire and exceptional” so as to justify exercising it.

As held in A v A, there was no doubt that that the restrictions on the use of the inherent jurisdiction of the High Court in the Family Law Act 1986 do not preclude its use so as to order the return of a British child to this country. Lady Hale and Lord Toulson set out the three reasons for caution about exercising the inherent jurisdiction as that (a) to do so may conflict with the jurisdictional scheme applicable between the countries in question (b) it may result in conflicting decisions in those two countries and (c) it may result in unenforceable orders. They said that it is one thing to be circumspect about the exercising the jurisdiction but that:

59. … It is another thing to conclude that the circumstances justifying its use must always be “dire and exceptional” or “at the very extreme end of the spectrum”.

None of the objections had much force in this case. No treaty was applicable between the UK and Pakistan. And it was highly unlikely that the Pakistani courts would entertain the appellant’s application whereas the possibility existed that an English court could take steps to persuade the respondent to obey its order. Nonetheless, in so holding Lady Hale and Lord Toulson said that the concept of comity may be compromised by the exercise of a nationality based inherent jurisdiction.

They anxiously analysed the transformation of comity discussed by US Supreme Court Justice Stephen Breyer in The Court and the World (2015) where emphasis is placed on an increasing need to consider foreign and domestic law together as if they are “parts of a broadly interconnected legal web”. Breyer explains that comity, a principle exacting that domestic and foreign laws should not impose contradictory duties upon the same person, used to prevent different nations’ laws from clashing but “today it means something more”. The upshot, for Breyer, was that the US Supreme Court has increasingly tried to interpret domestic law in a dynamic fashion that promoted harmony with related foreign laws “so that together they can more effectively achieve common objectives.” Lady Hale and Lord Toulson observed that in Mercredi the CJEU emphasised that protecting the best interests of the child is the very object of the international framework. As they said:

62. … If the court were to consider that the exercise of its inherent jurisdiction were necessary to avoid B’s welfare being beyond all judicial oversight, we do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity.

(iii) Lord Sumption (dissenting, with whom Lord Clarke agreed)

To borrow a phrase from the late US Supreme Court judge Antonin ‘Nino’ Scalia, who was administered the last rites and only recently laid to rest, insofar as the dissenting justices could see the majority’s view amounted to little more than “jiggery-pokery”. Lord Sumption and Lord Clarke were of the opinion that Hogg J had not erred in law and after having heard and reviewed the evidence she was entitled to find that B lost her habitual residence in England when she was lawfully removed from here by the respondent, her biological mother. Lord Sumption did not find it feasible to set aside the judgment purely on the ground that it “is ‘highly unlikely, albeit conceivable’ that habitual residence will be lost before a new habitual residence has been acquired”. In terms of criticism, uncertainty as to whether or not Lord Wilson was suggesting a principle of law or a proposition of fact remained his Lordship’s point of departure. He said that the proposition was “wrong” as a principle of law.

His approach differed from Lord Wilson in that he found “no jurisdictional limbo”. Lord Sumption opined that in the absence of an ascertainable habitual residence English and EU law allowed jurisdiction to be founded on the presence of the child and remarked that he would be “surprised” if Pakistani law is any different. He remained perturbed by the fact that no attempt had been made to prove that the latter is any different to the former. For him, a lack of jurisdiction in Pakistan’s courts was not the real objection to them.

Instead, the problem was that Pakistan’s courts would not approve of same-sex relationships and will not necessarily recognise a non-genetic family relationship like the one between B and the appellant. Although the English courts were right to show concern at this problem, he said at para 66 that it did not provide a basis for them to claim jurisdiction. The historian-judge critiqued the snazzy methods employed by the majority by pointing out that they had overcooked the scope of EU law and misunderstood the concept of inherent jurisdiction. They had become blindsided by their unreasonable desire to “rescue” B from Pakistan by using “what is on any view an exceptional and exorbitant jurisdiction.”

To put his dissenting colleagues at ease, Lord Wilson did at para 54 elaborate his rationale for disagreeing with Lord Sumption and explained that he had misunderstood the majority’s view “that the modern concept of habitual residence operates in the expectation that an old habitual residence is lost when a new one is gained.” For Lord Wilson, “the mere unlikelihood of the correctness of an outcome favoured by a judge would be a disgraceful ground for allowing an appeal.” He said that the majority had allowed the appeal on the basis that pursuant to the modern idea of habitual residence the point of loss is identified as being the stage when the person achieves the necessary degree of disengagement from the old environment. Intention, parental intention in the instant case, is no longer conclusive in this respect. Crucial in the formula is the attainment of the necessary degree of disengagement as is the child’s realisation of the necessary level of integration in the new environment. Applying this framework to the present facts, B had not lost her habitual residence in England by 13 February 2014 when proceedings were issued here.

Yet Lord Sumption questioned the majority’s belief, predicated on the notion of a seamless transfer of habitual residence (which is a “classic legal construct”), that they were not laying down a proposition of law. He said the idea of having no habitual residence leading to jurisdictional limbo as propounded by the majority was nothing other than a proposition of law; one that was patently incorrect.

For him the fact that there is a jointly mortgaged house in the UK waiting to be reoccupied or friends or relations in the UK to which B could return are irrelevant because (as the judge accepted) the child had been lawfully and permanently removed from the country. Lord Sumption, therefore, took a more cautious approach and like the Court of Appeal he preferred not to disturb Hogg J’s decision. He accepted the dilemma that jurisdiction based on presence is unsatisfactory but thought: “the solution to it is not to construct an artificial habitual residence in the place which the child has left for good.” Thus, opined his Lordship, that it was irrelevant that the child may have no habitual residence for a period after her removal. He expressed very strong disagreement with Lord Wilson’s “pejorative epithets” in relation to the respondent’s removal of B as “secret” and “clandestine” and found them to be unwarranted because the Pakistani biological mother’s conduct was clearly not “underhand”.

Moreover, the appellant’s problems stemmed from her not enjoying parental rights at the time of B’s departure from the UK and not being registered as a parent at birth. Furthermore, no civil partnership existed, there was no adoption and no parental rights agreement was extant. Similarly, there was also no court order recognising the appellant’s status with regard to the child. She was clearly not B’s mother and it was clear that the biological mother “was not trying to escape from the jurisdiction of the English court” and so the majority’s views were neither here nor there. I must say that for once – see my earlier reservations about his judicial methods here and here – even I must agree with Lord Sumption. Though he did not say it, his critique of Lord Wilson’s judgment almost renders the proceedings brought by the appellant as vexatious: that too at a time when recourse to legal proceedings seems to become more constricted with each passing day. In light of Lord Sumption’s dissenting judgment, it is also clear that this may well have been a case of an Indian lesbian bullying her older Pakistani lover and causing trouble for her using court proceedings.

Expressing regret in disagreeing with the majority, Lord Sumption said that his note of dissent was an inappropriate place to enter into a detailed analysis of the scope of the inherent jurisdiction. On that issue, he offered a tripartite rationale for disagreeing with the majority. First, exercising the jurisdiction was discretionary and Hogg J’s view – that accompanied by her biological mother the lawfully removed child would be safe in Pakistan – was not unreasonable. Indeed, it was “on any view … a view that a judge could reasonably take.” Despite the hazards posed to B by being deprived of direct contact with the appellant such contact did not warrant bringing her back.

Second, exercising the inherent jurisdiction and cutting across the statutory scheme was objectionable because to do so was an improper use of the court’s powers. The point was evident from the fact that the appellant’s application in England was for contact and shared residence and the relief sought was not of the type permitted to be ordered under the inherent jurisdiction, in a case where there was no jurisdiction under Regulation B2R or the Hague Convention 1996.

Finally, had extreme facts existed to justify using the inherent jurisdiction in this case, it would have been open to use the jurisdiction to direct an independent evaluation in order to satisfy the court that ordering the child’s return would be appropriate. In this case, that would involve ascertaining the impact of displacing the child for a second time from a settled life in Pakistan and the impact of the disruption on the life of the respondent – someone who is estranged from her family in the UK, will be unemployed upon return and does not want to remain here. However, the court was not in such territory because the lower courts held otherwise and no basis existed to disagree with them. “The mere absence of statutory jurisdiction in the English courts cannot possibly be a reason for exercising the inherent jurisdiction,” explained Lord Sumption at para 86. If anything, on the present facts, it was a real reason not to exercise the inherent jurisdiction.

Comment

In terms of child welfare, the Supreme Court’s approach accords with its earlier decisions such as In re G [2006] UKHL 43 and In re B [2009] UKSC 5 – which show that legal and biological parenthood are not determinative in relation to issues surrounding children’s upbringing/care and the word “parent” needs to be construed broadly. Essentially, because of the legal straitjacket produced by the black and white distinction between a legal parent and a non-parent, the absence of a definition for psychological parenting has forced the courts to develop a third way to accommodate same-sex and alternative families. And by concentrating on the child’s experience of being parented, these earlier authorities also demonstrate traction with the Strasbourg jurisprudence because it allows family life pursuant to article 8 ECHR to be established by non-biological parents serving the child’s emotional and psychological needs, i.e. a biological parent with no actual relationship with the child is likely to rank second to someone performing a de facto parental role.

On the facts of B’s case, however, the appellant was not in charge of her care needs and was clearly a peripheral figure compared to the “biological” parent and it may even have been the case that the appellant’s “psychological parenting” of B included arousing anti-Pakistan sentiment in her. So that way, by making the appellant out to be some sort of a victim, the majority may have led themselves down somewhat of a garden path. Yet, this is clearly a case where the majority of the Supreme Court felt the need to directly intervene in the affairs of a British Pakistani lesbian and her child because the British Indian lesbian partner would not have access to the courts in Pakistan on the basis of a same-sex relationship.

After all, as seen some years ago in HJ (Iran) [2010] UKSC 31, the court is an institution which considers itself to be an upholder of gay people’s rights. However, the present decision can plainly be seen as British and Indian interference in a British Pakistani woman’s affairs who consciously sought a better life elsewhere. Equally, with the greatest of respect to the justices, the effects of the court’s groundbreaking ruling in HJ can only be described as lukewarm because of the culture of disbelief that exists in the tribunals where stratospheric levels of Xenophobia are prevalent among the judiciary. Not every judge is a Lady Hale or a Lord Wilson and discrimination and hostility towards foreign people in the UK have reached a high-water mark.

Of course, this judgment is completely silent on why a British lesbian would like to leave the UK and live in a primitive country and expose herself and her only child to a law as nasty as section 377 of the Pakistan Penal Code? However, given the acute levels of hatred for foreigners prevalent in the UK (including foreigners holding British passports), it is not impossible to understand why the respondent traded the comforts of a leading liberal democracy for the uncertainties of corrupt Pakistan and as brilliantly explained in American Rock ‘n’ Roll folklore by The Freewheelin’ Bob Dylan way back in 1963:

the answer, my friend, is blowin’ in the wind.

On the vexing question of the section 377 offence (see here and here), also inherited by India and Bangladesh because of the colonial yoke, in December 2013 the Supreme Court of India held that it was up to legislators to give clarity to the law and it overturned the Delhi High Court’s decision that the provision was unconstitutional with respect to sex between consenting adults.

However, since then the court has reconsidered its position and said that a five-member constitutional bench will conduct a comprehensive hearing of the issues thrown up by petitions calling for abolition of section 377 because it suffers from the vice of unconstitutionality.

Although the LGBTI community has not as yet begun to properly articulate its rights in Pakistan, the Supreme Court there has already held that the country’s vibrant transgender hijras (who may also be eunuchs or intersex individuals) should be given equal rights like all other citizens including equal inheritance and employment rights. Under the ruling, the then Chief Justice Iftikhar Mohammad Chaudhry directed the authorities to attend to the complaints of the transgender community, members of which had complained to his court that because of their sexuality they were not allowed to rent premises to celebrate their birthday parties!

However, Bindiya Rana, Pakistan’s first transgender candidate for the provincial assembly remains unimpressed with practical effects of Chaudhry CJ’s ruling because it has failed to create permanent employment roles for hijras who have been part of the fabric of South Asian society right from the start but are in legal limbo in comparison to other citizens. Both Hindus and Muslims rely on hijras to bless weddings and births but they apparently disgusted British imperialists so much that they were made into a criminal class (for cross-dressing and professional singing and dancing). Even though many members of the community are unhappy with new labels being stuck on them and feel that it may increase their hardship, in India, the Supreme Court finally gave justice to the hijras when it held that they were entitled to recognition on official documents under a “third gender” category.

Ultimately, on the forum necessitates point, the argument that because of her sexual preferences the appellant would have no rights whatsoever in Pakistan’s courts can be quite easily attacked as one that may be badly misconceived. Given the exceptional nature of the case, it was completely open to the appellant to seek relief directly from the Supreme Court of Pakistan and invite it to exercise its “original” jurisdiction in relation to guaranteed constitutional rights (which resemble the Convention rights). She probably still can but then again being British it probably won’t be good enough for her would it!

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Adoption, Article 6, Article 8, Children, CJEU, ECHR, Families, Hague Convention, India, Nationality, Pakistan, UKSC, USSC and tagged , , , , , , , . Bookmark the permalink.

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