Re B (A child) [2016] UKSC 4

A same-sex partner sought orders relating to a child taken to Pakistan by the biological mother. The Supreme Court held, by majority, that the child retained habitual residence in England, reshaping the test for losing habitual residence under European law.

Facts

The appellant and respondent lived together in England in a same-sex relationship from 2004 to 2011. B, born in April 2008, was conceived through IUI treatment received by the respondent. Although biologically only the respondent’s child, the appellant played a significant parental role, with B calling her ‘mimi’. The relationship broke down acrimoniously in December 2011, and the appellant left the family home. Over the following two years, the respondent progressively reduced the appellant’s contact with B.

On 3 February 2014, the respondent clandestinely removed B to Pakistan, intending permanent relocation. She left a letter with house keys, posted from England on 6 February. The appellant, unaware of B’s whereabouts, issued an application on 13 February 2014 under the Children Act 1989 for leave to apply for shared residence or contact. On 6 June 2014, she applied for B to be made a ward of court and returned to England. The appellant had no parental responsibility because the IUI treatment pre-dated the relevant provisions of the Human Fertilisation and Embryology Act 2008.

Hogg J dismissed both applications, holding that B had lost her English habitual residence on 3 February 2014 and that the inherent jurisdiction should not be exercised because the circumstances were not ‘dire and exceptional’. The Court of Appeal upheld her decision.

Issues

The principal issue was whether the longstanding domestic approach to the loss of habitual residence, as expressed by Lord Brandon in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, remained correct given this court’s adoption of the European concept of habitual residence focused on the child’s integration in a social and family environment. A secondary issue concerned the proper exercise of the inherent jurisdiction over a British child not habitually resident or present in England.

Arguments

The appellant, supported by Reunite and other interveners, argued that the modern European concept of habitual residence should not leave children routinely without a habitual residence, and that Lord Brandon’s third preliminary point (that habitual residence can be lost in a single day by settled intention) was inconsistent with that approach. The respondent argued that habitual residence is a question of fact, that the judge had properly directed herself, and that intentional severance of links can occur faster than acquisition of new ones.

Judgment

The Supreme Court allowed the appeal by majority (Lord Wilson, with Lady Hale and Lord Toulson; Lord Sumption and Lord Clarke dissenting).

The Majority’s Approach to Habitual Residence

Lord Wilson held that Lord Brandon’s third preliminary point in In re J should no longer be regarded as correct. The European concept, articulated in Proceedings brought by A [2010] Fam 42 and Mercredi v Chaffe [2012] Fam 22, focuses on the child’s integration in a social and family environment, with parental intention being only one factor. Lord Wilson endorsed a ‘see-saw’ analogy: as the child puts down roots in the new state, the roots in the old state lift, achieving the requisite degree of ‘disengagement’.

Lord Wilson identified that recital 12 of Regulation B2R and the European authorities indicate that it is highly unlikely, though conceivable, that a child will lack any habitual residence. Where interpretation may reasonably yield either an existing habitual residence or a limbo, courts should adopt the former.

Applying the modern test, although several factors favoured disengagement (lawful removal by the primary carer with settled intention to relocate), the cumulative factors against disengagement were stronger: B had lived all her five years in England, was British, barely spoke Urdu, had been in Pakistan for only nine days by 13 February 2014, was not yet attending school there, had no permanent accommodation, and the appellant and grandparents remained in England. The court concluded B retained habitual residence in England, so the application could proceed to substantive determination.

Lady Hale and Lord Toulson on Inherent Jurisdiction

Although the habitual residence finding made the inherent jurisdiction question hypothetical, Lady Hale and Lord Toulson rejected confining the nationality-based jurisdiction to cases ‘at the extreme end of the spectrum’. The three usual reasons for caution (potential conflict with jurisdictional schemes, conflicting decisions, unenforceable orders) arguably carried little force here, since there is no applicable treaty between the UK and Pakistan, Pakistani courts were unlikely to entertain the appellant’s claim, and steps might be taken to persuade compliance.

Dissent

Lord Sumption (with Lord Clarke) considered that habitual residence is a question of fact, and Hogg J had directed herself correctly. The severance of old links is a unilateral act that can be achieved faster than acquisition of new links. Article 13 of Regulation B2R and analogous provisions provide residual jurisdiction based on presence, so there is no true ‘jurisdictional limbo’. Lord Sumption considered the majority’s approach introduced a legal construct inconsistent with the factual nature of the enquiry. He also rejected the use of the inherent jurisdiction, as B was not in personal danger and exercising it would circumvent statutory limitations.

Implications

The decision recalibrates the test for loss of habitual residence to align with the European child-focused concept. Parental intention is no longer dispositive; the central question is whether the child has achieved the requisite degree of disengagement from the old environment, which is closely tied to achieving integration in the new environment. The judgment articulates three non-binding expectations: deeper integration in the old state may slow integration in the new; greater adult pre-planning may speed it; and the presence of important figures remaining in the old state slows disengagement.

The case clarifies that being left without any habitual residence should be exceptional, even if conceivable. It also signals that the inherent jurisdiction based on British nationality should not be artificially confined to ‘dire and exceptional’ cases, though it must be exercised with caution.

The decision has practical significance for family practitioners advising on international relocation, abduction, and same-sex parenting arrangements, particularly where one partner lacks parental responsibility. It demonstrates that recent rapid relocation by a sole legal parent will not necessarily defeat the English court’s jurisdiction. The judgment leaves open important questions about the precise interaction between the inherent jurisdiction and the statutory restrictions in the Family Law Act 1986.

Verdict: Appeal allowed by majority. The Supreme Court held that B retained habitual residence in England and Wales on 13 February 2014, so the appellant’s application under the Children Act 1989 could proceed to substantive determination. It was unnecessary to determine the inherent jurisdiction question.

Source: Re B (A child) [2016] UKSC 4