1kbw silk to appear in new Supreme Court case

Supreme Court to consider habitual residence issues in ZA v NA appeal

Hearing fixed for 22nd and 23rd July

Article courtesy of Family Law Week 

The Supreme Court has granted permission to appeal to the mother in ZA & Anor v NA [2012] EWCA Civ 1396.

The substantive appeal has been fixed to be heard by the Supreme Court on 22 & 23 July 2013.  

Representation is as follows. For the appellant mother: James Turner QC, of 1 King’s Bench Walk, and Alistair Perkins, of 4 Paper Buildings, instructed by Dawson Cornwell. For the respondent father: Henry Setright QC, of 4 Paper Buildings, and Edward Devereux, of Harcourt Chambers, instructed by Thompson & Co.

Following the parties’ separation, the mother took the three older children (all of whom had been born and raised in England) on holiday to Pakistan, to which the father had returned. Whilst there, the mother was forced to resume the relationship and she and the children were prevented from returning to the UK. A fourth child (H) was born. Some months later, the mother escaped without the children. 

Once in the UK, she obtained orders (ex parte) for the children to be returned, underpinned by a declaration that all four were habitually resident in the jurisdiction of England and Wales.

The father’s challenge to the jurisdiction of the court was heard by Parker J who rejected it and repeated the order for the children’s return and reaffirmed the declaration on the habitual residence of the children. 

The father and children’s uncle appealed. The Court of Appeal, comprising Thorpe LJ, Rimer LJ and Patten LJ, found in respect of the older children that the original order and that of Parker J were unimpeachable and that the children’s habitual residence was in England and Wales.

However, the court split in its determination of the habitual residence of H, born in Pakistan. This issue was the subject of a review of existing case law, including consideration of the inter-relationship between the relevant ECJ and domestic authorities.

Patten LJ concluded that the need for “multifactorial” enquiries as to the relevant circumstances of each case was not inconsistent with there being some limits to the concept of residence and that the construction of a rule whereby new born babies could be presumed to take on the habitual residence of the custodial parent(s) was to be resisted. He concluded that he could not, at the moment, envisage any case in which a finding of habitual residence could be factually justified in respect of a child who was born and remained abroad.

He disapproved the decision of B v H, in which Charles J held that a child was habitually resident in England and Wales though he had never been there, and found that the orders in relation to H had been made without jurisdiction and must therefore be set aside. Rimer LJ agreed with Patten LJ.

Thorpe LJ dissented in respect of H, concluding that H took his mother’s habitual residence at birth. He considered that “the defeat of abduction must be supported” and that this case fell “narrowly on the right side of an important boundary.

In order to view the Court of Appeal judgment and a summary of it, please click here.