(Supreme Court, Lady Hale, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson, 9 September 2013)
The mother and father who were of Pakistani origin but lived in England separated when the mother sought refuge after claiming abuse in the relationship. The father travelled to Pakistan and following a period of separation the mother and children went to Pakistan in order to visit her family. While in Pakistan she claimed she was put under pressure by her family and the father's to reconcile and she was forced to hand over the children's passports. She sought the assistance of a refuge by which time she had given birth to a fourth child. Eventually she returned to England although without the four children.
The mother began proceedings for a return of the children who were all made wards of court and the father was ordered to facilitate their return. The father challenged the jurisdiction of the English court but the judge found that all four children were habitually resident in England and Wales and that the mother had not consented to the children living in Pakistan. The older children had retained their habitual residence in England and the fourth child was habitually resident in England by virtue of being born to a mother who was held in Pakistan against her will.
The Court of Appeal allowed the father's appeal in relation to the youngest child on the ground that habitual residence was not derived from that of the parents and required physical presence in that country.
The Supreme Court unanimously allowed the appeal. The court under the inherent jurisdiction was able to make orders on the basis of the child's British nationality. The case was remitted to the judge to determine whether that discretion should be exercised on the facts of the case.
Article 14 of Brussels II Revised provided that the common law rules of the inherent jurisdiction of the High Court continued to apply if the child was not habitually resident in a Member State. The Crown retained the power as parens patriae over those who owed it allegiance as British nationals. This jurisdiction was largely removed by the 1986 Act but not for the order for return made on the facts of this case. The judge below, however, did not address herself to this basis of jurisdiction and whether it would be appropriate to exercise it. The case should be remitted to the High Court for it to be considered, in the light of the particular circumstances of the case. If the court declined to exercise this jurisdiction, it would remain open to the mother to seek a reference to the Court of Justice of the European Union on the issue of habitual residence.