Monday, September 09, 2013

In the matter of A (Children) (AP): Supreme Court allows appeal

The Supreme Court
The Supreme Court has today allowed the mother's appeal in In the matter of A (Children) (AP).

The Issue
Whether the wardship jurisdiction (or inherent jurisdiction) of the Family Division of the High Court can ever be exercised in respect of an infant child who has never been physically present in England and Wales.

The Facts
Until October 2006 the appellant (the mother) lived in England with the first respondent (the husband) and their three children. All are British citizens. The marriage got into difficulty and the couple were separated between 2006 and 2008 when the husband spent time in Pakistan. The three children continued to live with their mother during this period. The husband returned to England in 2008. Not long after this the mother moved out of the family home. At first she lived in a refuge before moving to separate accommodation where she lived with the three children. On 13 October 2009 the mother and all three children went on holiday to Pakistan. They had booked to return to the UK on 3 November 2009. However, when in Pakistan the mother alleges that she was pressurised by the father and other family members into remaining in Pakistan against her will. Her passport and those of her children were removed from her such that she could not return to England. In February 2010 the mother discovered that she was pregnant by the first respondent with their fourth child. The child was born in Pakistan on 20 October 2010. This child is also a UK citizen. In May 2012 the appellant was able to recover her passport and returned to England. All four children remain in Pakistan. On 12 June 2012 the mother made a wardship application without notice in respect of all four children. The High Court declared that all four children were habitually resident in England, made them Wards of the court and required the first respondent to return them to England. The CA upheld the decision of the High Court with respect to the three older children. However, the CA allowed the appeal (Thorpe LJ dissenting) in respect of the youngest child on the basis that that child had never been physically present in England.

The Decision
The Supreme Court unanimously allowed the appeal and held that the court had inherent jurisdiction to make the orders in this case on the basis of the child’s British nationality. The case was however remitted to the judge to consider as a matter of urgency whether it is appropriate to exercise this exceptional jurisdiction.

A press summary of the judgment is available here, and the full judgment here.

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