EUPillar ZA, PA v NA [2012] EWCA Civ 1396

Summary

The parties got married in Pakistan in 1999. In 2004, the mother came to England where she gave birth to three children. In the period 2006-2008, the parents lived apart in England and Pakistan, respectively. The father appeared to have had an affair in Pakistan. The relationships between the parties deteriorated to the extent that the police had to intervene, arresting the father. The mother dropped the charges against the father, but had to seek protection in a refuge. A regime for contact was set up. In October 2009, the mother and the three children went to Pakistan where she had to stay against her wishes. In February 2010, she discovered that she was pregnant. Following the birth of the fourth child, she somehow managed to recover her passport and returned to England in May 2011. On 20th May 2011, Mr Justice Jackson made an order for the immediate return of the children to England. On 20th February 2012, a return order for all four children was repeatedly issued by Mrs Justice Parker. There was an appeal against the order of Mrs Justice Parker. The central question was whether the English did have jurisdiction to make such an order in respect of all four children. The Court of Appeal allowed the father’s appeal, holding that the High Court judge had jurisdiction only in respect of the three children. It was inter alia noted that: “13 Thereafter there have been a number of strategic interventions by the paternal family, their acts of commission or omission being heavily criticised by Mrs Justice Parker in several judgments on various dates in February 2012. This conduct is exemplified by an application made apparently without notice to a District Judge who adjourned the four day fixture commencing before Parker J on the 14th February.” [2012] EWCA Civ 1396 [13] On 9th September 2013, the decision of the Court of Appeal was reversed by the UK Supreme Court. In this context, Lord Hughes held: “93 There can be no doubt about the jurisdiction of the English court in relation to the elder siblings. This is not because of any rule of law which prevents one of two parents from unilaterally altering the habitual residence of a child. It is because as the 1980 Hague Convention requires, in the case of abduction, whether removal or, as here, retention, the acid test is habitual residence immediately before the event. They were resident in England. They went to Pakistan only for a three-week holiday. There they have been wrongfully retained. For the same reason, article 10 of Brussels II Revised maintains the jurisdiction of the English court. The only difference between the elder children and the youngest is the accidental fact that he has not yet reached the shores of his homeland. The reason why he has not done so is because he has been wrongly detained elsewhere by coercion. In my view he is, like them, a member of a family unit which is firmly based in England and when born into it he was like the rest of its members habitually resident there. His wrongful retention commenced immediately afterwards. Indeed, if the Court of Appeal is right, he could now be removed to another country without the removal being wrongful; such successive transportation of children to avoid enforced return is by no means unknown. There would, in my respectful view, be a serious failure of the protection afforded by the 1980 Hague Convention and article 10 if a newly born child in this situation is held to have no habitual residence and thus to be incapable of wrongful removal or retention. I am unable to see any sufficient reason for such a conclusion.” [2013] UKSC 60 [93].