No “inherent jurisdiction”

The ex-partner of a woman who took her child to Pakistan failed to prove the child was habitually resident in the UK, the Court of Appeal has held.

Re B (A child) (Habitual Residence) (Inherent Jurisdiction) [2015] EWCA Civ 886 concerned the issues of habitual residence and inherent jurisdiction. The mother had moved with her child to Pakistan. The child was conceived by IVF, the father is an unknown donor, and the mother’s female ex-partner applied for contact and the return of the child to the UK.

The court discussed the state of gay rights in Pakistan, and concluded that the ex-partner would have no “realistic opportunity” to advance her claim in the Pakistani courts.

Giving the lead judgment, Lady Justice Black held, however: “In our judgment that state of affairs is not by itself enough to justify the intervention of the English court. The fact that local judicial processes are, to our perception, inadequate does not in any way lessen the difficulties about seeking to invoke the inherent jurisdiction when a child is abroad.” She held that the child lost her habitual residence in England when she left for Pakistan, and that, while the loss of the relationship with the ex-partner would be a “real detriment” to the child, the ex-partner had not been in the household for some time before they left and had never held legal parental rights. She concluded: “The situation falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction.”

Clare Renton, a barrister at 29 Bedford Row, commented that the Court of Appeal had reiterated that  the issue of habitual residence must be determined on its facts, adding that an important factor was that any return order was not enforceable outside the jurisdiction.

“Nevertheless,” she says, “the court specifically observed that the decision should not inhibit the invoking of the protective jurisdiction in cases where forced marriage or female genital mutilation was an issue.”