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Supreme Court considers non-biological parent’s appeal

A non-biological mother has made a successful appeal to the Supreme Court for her application to be considered.

A recent case has considered a non-biological parent’s appeal following international child abduction.

The case of B (a child) [2016] UKSC 4 has recently been heard in the Supreme Court and concerns a child (‘B’) who is now 7 years old. The Respondent is B’s biological mother who was previously in a same sex relationship with the Appellant. Following treatment provided to both the Appellant and the Respondent as a couple, B was born in 2008.

The couple were not civil partners or married and the relationship broke down in 2011. The Appellant subsequently left the family home and the Respondent decreased the contact the Appellant had with B over the following two years. The Appellant objected to this however, meanwhile the Respondent had decided to leave with B to live in Pakistan where she had family connections. The Respondent left with B on 3 February 2014 for Pakistan without the Appellant’s consent although despite this, B’s removal to Pakistan was still lawful.

The Appellant then issued an application under the Children Act 1989 with the Court on 13 February 2014 for shared residence of B or contact with her. After becoming aware B was in Pakistan, she also applied for B to be made a ward of the Court and for her to return to England.

The Children Act application was dependent on whether B was habitually resident in the UK at the time the Appellant issued her application. The initial Court held that B had lost her habitual residence immediately on being removed and they could not deal with the Appellant’s application. The Court of Appeal subsequently dismissed the Appellant’s appeal.

The Appellant then appealed further to the Supreme Court and the appeal was heard in December 2015. The question the Supreme Court was required to consider was whether B had indeed lost her habitual residence in England. Lord Wilson commented that it needed to be asked whether the child had achieved the requisite degree of disengagement from her English environment at the time the Appellant’s applications were made.

After consideration of the matter, Lord Wilson came to the conclusion that B had not lost her habitual residence and the Appellant’s applications under the Children Act should proceed in the High Court.

Whilst this was the view of the majority (and therefore the Court’s decision), Lord Sumption and Lord Clarke disagreed with Lord Wilson’s view and were of the opinion that the initial Court had made no error of law was therefore entitled to find that B had lost her habitual residence in England on 3 February 2014.

The case not only highlights the rights of the non-biological parent in a same sex relationship, but also an important step in international family law as to when a child would lose their habitual residence if removed by a parent from the jurisdiction.

Author: Jennifer Sweeting

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Beverley Jones

Partner - Head of Family Department (Liverpool)

Heading the family team in Liverpool, I am a family and matrimonial expert who deals with all aspects of family law.