Habitual residence and nationality as jurisdictional bases for ordering return of a British child  

The Supreme Court has recently given judgment in a case involving the wrongful abduction (or retention) of a dual national (British and Pakistani) child in Pakistan. See Re A [2013] UKSC 60, 9 Sept 2013.

The issue concerned the following questions: firstly, whether a child born in Pakistan to a mother, who had been prevented from coming back to England with her other three British born children, could be said to be habitually resident in England for the purposes of the Council Regulation (EC) No 2201/2003, otherwise known as the Brussels II revised Regulation (in line with the mother’s habitual residence) even though the child had never been to the UK in his young life; and, secondly, if he could not, and if the fact of his British nationality could provide a basis for the court to exercise jurisdiction over the child, whether the court ought to make an order for the child to be returned to the UK.

Judith Parker J, at first instance, had held that the mother and all four children, including the youngest who had been born in Pakistan, were all habitually resident in the UK. That ruling was made on an application, itself made by the mother after her return from Pakistan, to order the father, who remained in Pakistan, to return the children. On the father’s appeal, the Court of Appeal held by a majority decision that whilst the three elder children were habitually resident in the UK, the fourth and youngest child was not, never having been physically present in the UK. The Court of Appeal was not asked (until after the main hearing of the appeal in the Court of Appeal) to consider jurisdiction on grounds of the fourth child’s British nationality. It decided that this question could be dealt with by the Supreme Court as the mother was to appeal in any event on the habitual residence question.

On the mother’s appeal, four of the Supreme Court justices (Lord Hughes dissenting) were of the view that, contrary to the mother’s argument, physical presence was required for the test of habitual residence to be satisfied under the Regulation. The court said that, if it had been necessary to do so at this stage, it would have referred this question to the Court of Justice of the European Union for a preliminary ruling. However, it decided not to do so because it confirmed that the courts had an inherent jurisdiction on grounds of the child’s British nationality and that, as Judith Parker J had made no decision on that basis, the matter should be remitted to her for a decision on that issue. The court recognised that if Judith Parker J declined to exercise jurisdiction in respect of the fourth child on the grounds of his British nationality, a reference to the CJEU on the habitual residence issue would have to be made. The court also recognised that the use of nationality to assert jurisdiction was an exceptional step and that there were powerful reasons, put forward by the father’s legal team, for not exercising jurisdiction on that basis.

Unfortunately, this means that the two critical questions in this case, whether physical presence (however fleeting or in the past) is a necessary part of the test of habitual residence under the Brussels II Revised Regulation, and the circumstances in which the court’s inherent jurisdiction may be exercised over British children abroad, remain unresolved. Merely confirming that the inherent jurisdiction still exists and remitting the appeal for consideration of its exercise leaves the main questions still open. These questions are therefore bound to arise again in future cases.    

Manjit S. Gill QC was instructed at a late stage in the Supreme Court as part of the father’s legal team.