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(Family Division; HHJ Barnett sitting as a judge of the High Court; 28 May 2009)
The English mother of Indian origin met and married the Pakistani father in Pakistan. The couple lived together in England, which was where the child was born. When the child was discovered to have fractures to the shoulder, elbow and forearm, care proceedings were initiated. Although, at the fact-finding hearing, the father was identified as the perpetrator, evidence that subsequently emerged led the court to find that in fact the mother was the perpetrator. An expert prepared a report on the ability of the father and his family to care for the child in Pakistan; the possibility that the father might leave the children in Pakistan with the paternal grandparents was examined. On the basis of the favourable report, a residence order was made in the father's favour, with a regime of supervised contact with the mother and a 12-month supervision order to the local authority. As envisaged, the father obtained leave to remove the child permanently from the jurisdiction, giving an undertaking that he would return to the jurisdiction if ordered to do so. At the same time the court made an order for supervised visiting contact and weekly telephone contact. The child went to live with his paternal grandparents and aunt in Pakistan. Contact with the mother continued after the relocation for about a year, but, following an argument during supervised contact at the mother's home in England, the mother applied to enforce contact. This led to a conciliation hearing at which the parents agreed weekly telephone contact in Pakistan, plus daily telephone contact in England and defined arrangements for face-to-face contact in England. The mother then made a second application, seeking to vary contact to permit unsupervised contact. The question of jurisdiction arose as a preliminary issue.
There was no jurisdiction to entertain the mother's applications. It could not be said that the parties had invoked the jurisdiction because, while the mother had made a number of attempts to invoke the English jurisdiction, the father had, since relocation, merely attended court in response to the mother's applications, which were applications for contact orders pursuant to Children Act 1989, s 8. Under the 1989 Act the English court had jurisdiction in non-European cases only if the habitual residence condition in s 3 was satisfied. In this case s 3 was not satisfied, because the child was neither habitually resident in England, being habitually resident in Pakistan even though both parents were resident in England, nor physically present in the jurisdiction. The mother's applications did not fall within the exception provided for in s 1(1), as applications for variations of existing orders. The residence order was not a 'subsisting order' because thereafter the father had been given leave permanently to remove the child from the jurisdiction. It would be wrong to consider residence orders as continuing to subsist after settled relocation had taken place, or as in some way surviving relocation. The only order the mother could possibly be seeking to vary was the contact order made at the time that leave to remove was granted. However, that had merely been intended to regulate contact on an interim basis, prior to relocation, and did not purport to define or regulate contact after relocation to Pakistan. Therefore, there was no extant contact order that the mother, by her applications, could seek to vary. The undertaking given by the father to return to the jurisdiction would confer jurisdiction to act against the father if he were in wilful breach, but did not confer jurisdiction to make orders concerning the child. The court should be extremely slow to allow the inherent jurisdiction to be used as a mechanism to avoid the statutory constraints upon its jurisdiction where the justification was the nationality of a child who, although once resident in England, had been living in Pakistan for over 4 years. The fact that the parents were both resident in England made the case unusual, but not exceptional or extraordinary.