Supreme Court judgment modernises International Family Law
The Supreme Court has modernised its treatment of separating families in its first child abduction case involving same-sex parents. The case concerned a child’s abduction to Pakistan by its British birth mother.
The appeal made by the child’s non-biological mother has been allowed by the Supreme Court on the basis that the child remained ‘habitually resident’ in England when the application was made. Pakistan’s attitude towards same-sex relationships further meant that the case would not be legally recognised there, leaving the English Courts as the only forum to resolve the issue.
Habitual residence is the place considered as ‘home’ or where an individual spends the majority of their time; it is the location where they have centred and integrated their interests. Habitual residence is used to determine the law which should be applied to a legal dispute.
This case shows that the removal of a child outside of the country by a parent will not necessarily cause that child to lose their habitual status and prevent the English Courts from making orders in respect of the child. A child’s habitual residence shall rarely be lost until a new one has been established in the country they are now residing, something which takes time.
The biological parent of a child in same-sex couples shall no longer be able to avoid proceedings by abducting a child with a view to immediately changing their habitual residence. The decision in this case will assist all parents, hetrosexual or otherwise, who do not have formal legal rights in respect of their children, ie. non-biological parents, fathers without parental responsibility etc.
If your child is removed from the Country without your consent it is essential that proceedings are issued quickly before the child has become sufficiently integrated in their new location causing them to lose their habitual residence in England. Legal advice should therefore be sought as soon as possible.
For more information please contact Anna Scales, Solicitor, Private Client - Family.
Published: 17 Feb 2016