A (Children), Re

Factual and Procedural Background

The case concerns a child (“Haroon”) born in October 2010 in Pakistan to parents who, together with Haroon’s three older siblings, have strong connections with the jurisdiction of England and Wales. The mother had been habitually resident in The City for many years, but in 2009 she and the older children travelled to Pakistan for what was intended to be a short visit. While there she was coerced into remaining, her and the children’s passports were taken, and she was ultimately prevented from returning to The City. In May 2011 she escaped to England without the children.

On 20 June 2011 Judge Jackson made all four children wards of court and ordered the father to return them to England and Wales forthwith. Freezing, sequestration and ancillary orders followed. In February 2012 Judge Parker held that all four children, including Haroon (who had never been to England), were habitually resident in England and Wales and continued the earlier orders.

The father and his brother sought to appeal out of time. In January 2013 the Court of Appeal dismissed the appeal regarding the older three children but, by majority, allowed it concerning Haroon, holding that physical presence was an indispensable pre-condition to habitual residence. The mother obtained permission to appeal to the Supreme Court, which is the opinion summarised here.

Legal Issues Presented

1. Whether a child who has never been physically present in England and Wales can nonetheless be “habitually resident” here for the purpose of Article 8 of Council Regulation 2201/2003 (“Brussels II revised”).
2. Whether, failing habitual residence, the High Court may exercise its inherent parens patriae jurisdiction on the alternative ground of the child’s British nationality.
3. Whether the original return order was a “Part I order” under the Family Law Act 1986, thereby engaging the statutory jurisdictional restrictions, or an order properly made under the inherent jurisdiction.
4. Whether Brussels II revised applies where the alternative forum is a non-Member State (Pakistan).

Arguments of the Parties

Appellant’s Arguments (Father and Brother)

• The return order was in substance a specific issue order under s.8 of the Children Act 1989 and therefore a Part I order, so the High Court lacked jurisdiction absent habitual residence.
• Habitual residence requires prior physical presence; a legal construct equating a newborn’s habitual residence with that of a parent is impermissible and inconsistent with EU jurisprudence.
• Even if the statutory route failed, the court should decline any “exorbitant” nationality-based jurisdiction on forum conveniens grounds.

Respondent’s Arguments (Mother)

• The June 2011 order was made under the inherent jurisdiction, not the Children Act 1989, so the Family Law Act 1986 prohibitions did not bite.
• Haroon acquired the habitual residence of his mother and siblings; physical presence is not an absolute prerequisite where the child’s absence results from coercion.
• Alternatively, the High Court may act on Haroon’s British nationality and allegiance, a jurisdiction historically affirmed in Hope v Hope.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Nature of the Original Order. The Supreme Court concluded that the June 2011 return order was made in the exercise of the inherent jurisdiction, not under the Children Act 1989. Consequently it was not a “Part I order” under the Family Law Act 1986, and the statutory prohibitions in s. 2 of that Act did not apply.

2. Whether Brussels II revised Applies. The order related to “parental responsibility” as defined in Articles 1 and 2 of the Regulation. The Regulation therefore governed jurisdiction, even though Pakistan is a non-Member State. Article 14 provides for residual Member-State jurisdiction where Articles 8–13 are inapplicable.

3. Habitual Residence Test. Reviewing EU case-law, the majority held that habitual residence is a factual concept centred on the child’s integration in a social and family environment; parental intentions are relevant but not decisive. The English “Shah” test and any perceived requirement of prior physical presence are abandoned.

4. Application to Haroon. Although inclined to hold that physical presence is required, the majority found the point not acte clair under EU law and therefore unnecessary to decide immediately because another jurisdictional basis (nationality) was available.

5. Nationality-Based Jurisdiction. The common-law parens patriae jurisdiction over British nationals abroad survives unless expressly removed. The Court accepted that this basis had not yet been considered by Judge Parker and remitted the matter so she could decide whether, on the facts, it should be exercised.

6. Forum Considerations. Any forum non conveniens argument by the father must now be addressed only if the High Court first elects to exercise the nationality jurisdiction; the father is estopped from relitigating issues already determined.

Holding and Implications

HELD: The appeal is allowed; the case is remitted to the High Court judge to decide urgently whether to exercise the inherent jurisdiction over Haroon on the basis of his British nationality.

Implications: The Supreme Court clarified that:

• Return orders made under the inherent jurisdiction fall outside the Family Law Act 1986 “Part I” structure.
• Brussels II revised applies even where the competing forum is a non-EU State.
• The concept of habitual residence under EU law is factual and child-centred; English common-law glosses requiring physical presence or focusing on parental purposes should be discarded.
• The long-standing nationality-based wardship jurisdiction endures but must be exercised with “extreme circumspection.”

The decision keeps open a pathway for English courts to protect British children stranded abroad by wrongful coercion, while signalling that a definitive ruling on habitual residence without presence may require a reference to the Court of Justice of the European Union in a future case.