Family Law Week recently gave details of the dismissal of an appeal by a same sex partner to overturn an order regarding a child who had been taken to live in Pakistan.

In April 2008, a child was born to a same sex couple, after the biological mother had received IVF treatment. On 3 February 2014, it is understood that the couple were no longer together, having separated in 2011, and the mother took the child to Pakistan. Ten days later, her ex-partner, who had no parental responsibility, began legal proceedings to maintain contact with the then-five year old.

The appellant argued that the child was habitually resident in the court’s jurisdiction as she was a British national and with that in mind, she sought an order for the child to be made a ward of the court and returned to England.

The case was heard by Mrs Justice Hogg, who found that the child’s departure to Pakistan effectively concluded her habitual residence in England, and that the Family Law Act 1986 prevented her from exercising the inherent jurisdiction. On this basis, she dismissed the order.

Subsequently, the appellant took her case to the Court of Appeal, where she claimed that Mrs Justice Hogg was incorrect in her judgement both that the child was not habitually resident in England at the time of the initial application, and that inherent jurisdiction could not be exercised.

The law states that where it is suspected that a child has been removed abroad to take part in an arranged marriage, where their safety may be in question due to conflict in that country or where they may be subjected to female genital mutilation, this is usually considered exceptional circumstances where inherent jurisdiction may be exercised.

Although she accepted that the appellant was not able to litigate in Pakistan courts, presiding judge Lady Justice Black dismissed her argument. She found that there was not sufficient cause to justify the exercise of the inherent jurisdiction, owing to the fact that the child’s mother had always been her primary carer whilst the other woman had no parental responsibility and that there was no evidence that the child was in danger whilst in Pakistan with her mother.



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