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Last year saw the Supreme Court making a ruling that the decision of a child’s biological mother to remove the child to Pakistan, without the non-biological mother’s consent, did not cause the child to lose her English habitual residence, and therefore the English court retained full jurisdiction to make decisions about the child’s welfare.
This judgment contains significant guidance on the law of habitual residence. The decision is of universal importance, to parents, heterosexual or otherwise, who lack formal legal rights in respect of their children.
The judgement is of huge practical significance, as well as being a humane and modern approach to cases involving children of same sex couples.
The case, Re B (A Child)  UKSC 4, involved a seven-year-old British child who was taken to live in Pakistan by her British biological mother, one of a lesbian couple, after the couple’s separation.
When in a relationship the couple were assessed as a couple as recipients for fertility treatment. The biological mother fell pregnant after one course of IUI treatment and the child was subsequently born as a British Citizen. The couple separated some years later. The biological mother’s former partner continued to have regular contact with the child.
The biological mother was made redundant and offered an opportunity to work in partnership with a friend in Pakistan. Meanwhile the former partner, who was completely in the dark about the biological mother’s plans to relocate, proposed a shared parenting arrangement be put in place for the child and threatened to make an application to court. The couple agreed to attend mediation to try and resolve matters. The biological mother’s engagement in mediation was later found to be a charade as a few days before the second scheduled mediation session the biological mother left England with the child to live in Pakistan.
Due to the failure to attend mediation the former partner issued court proceedings, believing at that stage the biological mother and child were in England. The biological mother was eventually located but claimed that the English courts did not have the power to deal with the case as the child was not habitually resident in England.
Pakistan’s attitude to homosexuality meant that the only forum to resolve the issue could be England. The official view in Pakistan appears to be that same-sex relationships involve “abnormal sexual behaviour” and therefore the biological mother’s former partner was without recourse to the court there to maintain her relationship with the child.
The biological mother’s former partner in this instance was not a legal parent to the child, and did not hold parental responsibility. Therefore the removal of the child from England by the biological mother was neither unlawful as a matter of criminal law, nor ‘wrongful’ for the purposes of the provisions in family law.
The case ended up in the Supreme Court where the majority accepted that at the date the application was made the child remained habitually resident in England. This means that rather than being in a legal limbo, a child in these circumstances will be more likely to be protected by being considered as resident in the country from which he or she was taken. Whether a child is habitually resident in England, therefore enabling a case to be dealt with under English law, continues however to depend on a case by case analysis of the individual circumstances in question.
Parental status also has to be considered by the court when deciding whether it has the power to deal with a case. The question of a person’s parental status may be highly relevant in international cases such as this for two main reasons. Firstly because when establishing the child’s habitual residence you have to consider the child’s degree of integration into a ‘social and family environment’ so you need to consider who makes up that ‘family environment’, including most importantly by identifying the child’s parents (this is done by looking at who are the biological, legal and/or ‘psychological’ parents), and analysing the child’s relationship with them. A child is often more likely to maintain a stronger attachment to a country where one of their parents remains. Secondly, it is considered to be more justifiable to use Court powers to protect the relationship between a child and parent (as opposed to just a friend or wider family member).
There are a number of ways in which both members of a same-sex couple can become the legal parents of a child. These include by joint adoption, by parental order following surrogacy or, for a lesbian couple, by way of the second female parent provisions that are nowadays provided for in legalisation. A second female parent may also obtain parental responsibility for a child in the same way as an unmarried father, for instance by way of a Parental Responsibility Agreement or Court order.
There are though, as in this case, many same-sex couples who become parents but who do not go on to regularise their legal position (often because they simply wrongly assume that they are automatically recognised as legal parents). Previous cases before the Courts have therefore developed to recognise the concept of the ‘psychological parent’.
The rationale for this focus on psychological parenting is that in a welfare-based jurisdiction the family unit in which the child lives is likely to be of more relevance to the child’s day-to-day wellbeing than biological or legal parentage. The focus of the Courts in England has been on the child’s experience of being parented, rather than strictly on the legal status of the parent or a biological tie.
Permitting psychological parents/parental figures to establish ‘family life’ is consistent with the human right to a family life, in European Convention of Human Rights cases it is more likely that a person playing a parental role will be able to establish a ‘family life’ than a biological parent who has established no actual relationship with the child. The word ‘parent’ is therefore often given a broad meaning when determining welfare issues in relation to children.
The court in this case observed that the biological mother’s former partner had strong claims to also be described as a parent to the child and reference was made to her status as a ‘psychological parent’ given that technically she had no legal recognition as a parent.
The judgment in this case has sent out a strong message to parents in England with sole legal rights that they will no longer necessarily succeed in avoiding Court proceedings by removing the child from the country. The child’s pre-existing habitual residence will rarely be lost until a new habitual residence has been gained and particularly in cases involving the unilateral action of removal by a parent this is unlikely to be accomplished instantaneously.
The case provides greater certainty to parents whose relationship breaks down shortly after a joint move to another jurisdiction. The decision will be particularly welcomed by parents who lack formal legal rights in respect of their children, but also highlights the importance for parents to check their legal status so far as being a parent is concerned to help avoid difficulties arising.
The court process can cause disputes to escalate, and the parties to become entrenched in their positions, neither of which is helpful to meeting the best interests of children. Parents are encouraged to engage in negotiation and mediation to resolve their disputes. A system of law which too readily allowed a parent acting unilaterally to bring about the loss of their child’s habitual residence was often a strong deterrent to mediate, hopefully the decision in this case should therefore create a significant new incentive to parents to resolve their difficulties by agreement.