A recent Court of Appeal case tackles the controversial concept of habitual residence. Clare Williams reports
In ZA & Another v NA [2012] EWCA Civ 1396, the parents celebrated an arranged marriage in Pakistan in 1999. The mother obtained a visa and the couple moved to this country. Their first three children were born here in 2001, 2002 and 2005 respectively. There were difficulties in the marriage and the parties lived apart between 2006 and 2008. The mother alleged verbal and physical aggression against the father but dropped charges against him, in Thorpe LJ’s judgment, under pressure from her family. She went to a refuge and then found accommodation for herself and the children. Contact arrangements were put in place.
In 2009, the mother took the three children to Pakistan on holiday. Despite the mother and children having return flights booked, the father and his family pressured her into a reconciliation. She and the three children remained in Pakistan in circumstances described by the court as “involuntary”. The mother became pregnant by the father in 2010, managing to resist pressure from the paternal family to have a termination. It was found that the mother was threatened with death if she attempted to escape and suffered threats and physical abuse at the hands of the father and his family.
With the assistance of her own family and “a group of elders” the mother managed to retrieve her passport and flew to England in May 2011. After the mother had left and without her knowledge, the father issued custody proceedings in Pakistan.
Days after her arrival in England, the mother obtained a without notice order for the immediate return of the children. This order (made in wardship, rather than under the Hague Convention as Pakistan is not a signatory) was predicated on a declaration that all four children were habitually resident in this jurisdiction. The father was served in August 2011.
Various court appearances in this jurisdiction in relation to injunctive financial orders resulted in the without notice order being repeated. In February 2012, Parker J heard a contested hearing to determine a challenge to jurisdiction “raised by solicitors who said that they were instructed on behalf of the husband and seven other members of the paternal family”. Parker J found in favour of the mother and repeated the order for the immediate return of all four children.
Appeal
The father’s appeal attacked Parker J’s order on four main bases:
- she was wrong in law to hold that the youngest child was habitually resident here as he had been conceived abroad and never been outside Pakistan;
- the Pakistan custody proceedings were first in time and therefore principles of comity should have prevented the London court from assuming jurisdiction;
- a provision of the “Pakistan Protocol” had been disregarded; and
- the judge had (wrongly, in their submission) applied the English concept of habitual residence rather than that established in the European Court of Justice.
The Court of Appeal upheld the declaration that the three oldest children were habitually resident in England and Wales. In his leading judgment, Patten LJ described the father’s appeal in this regard as “quite hopeless” on the grounds that the habitual residence of a child cannot be changed by the unilateral action of one parent, which would amount to a “charter for abduction”. The mother was habitually resident in England and had only ceased residing here under duress, likewise the children, whose habitual residence flowed from that of their mother. The points about the Pakistan Protocol and the application of the English versus ECJ test for habitual residence did not find favour, particularly the latter which would not have resulted in a different outcome in the court’s view.
However, when turning to the position of the youngest child, the Court of Appeal, with, one anticipates, some regret, found that without a child ever having been physically present in this country he could not be said to be habitually resident here. In reaching the decision, the court had to disapprove the judgment of Charles J in B v H (Habitual Residence: Wardship) [2002] 2 FCR 329 on which Parker J had relied in relation to the youngest child.
Thorpe LJ (dissenting) agreed that “as a general rule, habitual residence is dependent upon the physical presence of the individual within the jurisdiction, although that presence may be intermittent”. However, he found that there were narrow circumstances in which a newborn could acquire the habitual residence of its parent without ever having been in a country. The example was cited of an English mother who gives birth while visiting France and is forced to remain their due to medical complications. Should that child sensibly be termed habitually resident anywhere other than England? Thorpe found that the situation of the youngest child “narrowly falls on the right side of an important boundary”.
The Court of Appeal found that habitual residence was a matter of fact and not a legal concept or term of art. Although a “multi-factorial” inquiry was necessary to establish habitual residence, this did not mean that there were not “limits to the concept of residence”. Accordingly, the court found “it is clearly artificial as a matter of ordinary language to say that a child is habitually resident at birth in a county to which it has never been”.
The parties were ordered to provide the court with written submissions on the question of forum non conveniens as this was not argued on appeal.
Conclusion
This will have been a deeply unsatisfactory result for the mother, for whom one cannot help but feel tremendous sympathy. The case underlines the factual nature of habitual residence and works (in one respect) to simplify the concept in relation to minor children.
Clare Williams, associate, JMW. E-mail: clare.williams@jmw.co.uk Website: www.jmw.co.uk
