RE A (Wardship: Jurisdiction)[1995] 1 FLR 767
4 International Abduction [UK 1995]
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RE A (WARDSHIP: JURISDICTION)
Family Division
Hale J
21 December 1994
<* page 767>
001 Jurisdiction – Wardship proceedings – Child sent to
Pakistan in 1994 – Reason for child being in Pakistan
disputed by parents – Mother issuing application for
wardship and return of child to England – Whether child
habitually resident in Pakistan
002 The child was born in England but had lived in
Pakistan since 1994. An order was made in wardship
proceedings that the mother should have interim care and
control of the child and the father was ordered to return
the child to the jurisdiction. The father and his family
were ordered to surrender their passports. The judge was
invited to consider the preliminary issue of jurisdiction.
It was common ground that both parents’ habitual residence
remained in England. The father argued that there was an
agreement between the parties that the child should change
her habitual residence and that the child should not only go
to school in Pakistan but also live there. The mother stated
that the child went to Pakistan for educational purposes
only. The Official Solicitor argued that even if there was
an agreement for the child to live abroad, if the parents
were both still habitually resident in England and the
agreement failed, it could not be a settled agreement that
the child’s habitual residence was to be abroad.
003 Held – if the parents were together, the habitual
residence of the child was that of the parents unless there
was a contrary agreement. One parent could not unilaterally
change the child’s habitual residence without the agreement
of the other, unless circumstances arose which, quite
independently, pointed to a change in the child’s habitual
residence (see p 771D-H [021 – 023] below). It was open to
the parents to agree to change their child’s habitual
residence without changing their own, but an agreement to
send the child abroad to a boarding-school was not
sufficient (see pp 772H-773A [028 – 029] below). The child
was habitually resident in England and Wales, and the court
therefore had jurisdiction to determine her future.
Statutory provisions considered
Adoption Act 1976, s 72(1)
Family Law Act 1986, ss 1(1)(d), 2(3), 3(1)
Children Act 1989, s 105(6)
Cases referred to in judgment
F (A Minor) (Abduction: Custody Rights), Re [1990] 2 AC 562,
[1990] 3 WLR 492, sub nom C v S (A Minor) (Abduction) [1990]
2 FLR 442, [1990] 2 All ER 961, HL
S (Minors) (Abduction: Wrongful Retention), Re [19941 Fam
70, [1994] 1 FLR 82, [1994] 2 WLR 228, [1994] 1 All ER 237
Roger Bickerdike for the mother
Gulzar Syed for the father and members of his family
Ernest Ryder for the Official Solicitor
004 HALE J: These are wardship proceedings in which a
preliminary issue of jurisdiction arises. The child
concerned is S who was born in this country on 7 February
1986 and so is now aged 8, coming up to 9. She is the only
child of her parents, the plaintiff mother and the
respondent father who <* page 768> were married on 13
November 1980 in Pakistan. Since earlier this year, S has
been in Pakistan in circumstances which are in dispute
between the parties.
005 The mother’s case was launched on 30 November 1994
against the father and other members of the extended family.
The second and third defendants are the paternal
grandparents, the fourth and fifth defendants are the
father’s brother and his wife and the sixth defendant is
another of the father’s brothers.
006 I propose to set out the history of the proceedings
for the record and because it contains some unusual
features. The case came before Kirkwood J ex parte on 30
November 1994 when he ordered the child to remain a ward of
court and gave interim care and control to the mother. He
ordered the father to return the child to the jurisdiction
and, upon return, he restrained the father from removing the
child again and he ordered all six defendants to surrender
their passports and restrained them from leaving the
jurisdiction, all of these orders to continue for 7 days
until 7 December 1994 when they were all ordered to attend
before this court. However, there was no time available on
that date and so I extended those orders until the following
day, 8 December 1994.
007 On that date the first to the fifth defendants were
represented by counsel, and the sixth defendant appeared in
person, and it was clear that there was a contest; first, on
the issue of jurisdiction, the father would argue that S had
become habitually resident in Pakistan, whereas the mother
would argue that she had never agreed to her child going
there or that, if she had, this did not amount to a change
of habitual residence; and secondly, if the court did have
jurisdiction there would be an issue on care and control.
008 As time was not then available to try a contested
issue of fact the matter was adjourned to last Friday, 16
December 1994. The orders were continued save for the orders
to return the child to the jurisdiction and for the father,
grandparents and sister-in-law to surrender their passports,
but the father was restrained from taking steps to acquire a
replacement for his passport which is, in fact, held by the
mother, and the grandparents were excused attendance on 16
December 1994. Of course, at that stage it was contemplated
that everything would be considered once more on that date.
009 However, on 15 December 1994 the solicitor for the
mother appeared before me in court ex parte. She stated that
she had information relating to the child which her client
had given her but which her client had insisted should not
be given to the defendants. As the child was a ward of court
I agreed to hear that information but without any promise
that it could then be withheld from the other side. It was
that the mother had flown to Pakistan intending to collect
the child from her parents where the child had been kept
after a visit and to return to this country with her. The
hearing the next day might, therefore, have to be adjourned.
I then made it plain that this information would have to be
disclosed to the defendants the next day, but it appeared to
me that there was no action which the court either could or
should take to protect the ward’s interests and the
interests of justice until then.
010 Nevertheless, the matter caused me considerable
concern. Wardship proceedings are sui generis and in some
respects inquisitorial. The court <* page 769> becomes the
guardian of the child and must, therefore, be informed of
any important step which is taken in relation to the child.
The court is also entitled to act of its own motion to
protect the child’s interests. It is, therefore,
understandable that those representing the mother thought
that the court should be informed even though they had no
immediate application to make. On the other hand, when this
action is added to the mother’s action in obtaining ex parte
relief against no less than six members of the father’s
family, after the child had been absent from this country
for some months, it could well have contributed to a feeling
of unfairness on the father’s part. It undoubtedly placed
the court in a difficult position, as the court has no
intention at all of prejudging the issues between the
parties and seeks to maintain a neutral stance before trial
while protecting, as best it can, the interests of its ward
in the meantime.
011 In the event, no objection has been taken on behalf of
the father to my dealing with the case today and, indeed, I
have been expressly invited by him to do so. In the event,
also, the next morning it became clear that the grapevine
had operated effectively in Pakistan and the father’s family
knew the position although, of course, it was not known
whether or when the mother would return. Accordingly, the
issues were adjourned to the first available date, the issue
of jurisdiction being one which would have to be tried by a
High Court judge. The wardship was continued, with some
modifications to the other orders designed to cater for
swift changes in the position and to make them as little
oppressive as possible to the other defendants, one of whom
was discharged as a party.
012 The case was listed for mention before me today so
that matters could be reconsidered in the light of whether
or not the mother had indeed returned to this country. She
has returned and I am today invited to resolve the
preliminary issue of jurisdiction.
013 By virtue of s 2(3) of the Family Law Act 1986, when
read with s 1(1)(d), and s 3(1), in a case where there are
no matrimonial proceedings between the parties this court
only has jurisdiction to make orders under its inherent
jurisdiction dealing with the care, contact or education of
a child if the child is habitually resident in England and
Wales; or present here and not habitually resident elsewhere
in the UK or certain dependent territories; or present here
and the court considers the immediate exercise of its powers
necessary for the child’s protection.
014 Although the child is now present here so that the
court undoubtedly has jurisdiction, at least in the short
term, the case has today been argued on all sides on the
point of habitual residence because there might be other
implications if the child has, in fact, become habitually
resident in Pakistan. There are disputes of fact between the
parties, but counsel for the mother and for the Official
Solicitor have both argued the case on the basis that I
accept what is said in the affidavits filed on behalf of the
defendants. Hence, it was unnecessary for the court to hear
oral evidence to determine this preliminary issue.
015 Some of the facts are clear. The child travelled to
Pakistan earlier this year in the company of other members
of her family including her paternal grandmother, the third
defendant, another uncle and his family, and her cousin A,
the daughter of the fourth and fifth defendants. The mother
says that they left in March 1994 but everyone else says
that it was on <* page 770> 29 January 1994. The party
stopped in Saudi Arabia for religious reasons on the way and
then travelled on to Pakistan. There they were met by the
paternal grandfather, the second defendant, and they stayed
in the village where both parents’ families originate. The
grandfather searched for a suitable boarding-school for both
S and A and they were eventually enrolled in a school in
Rawalpindi in April 1994 but they came home to the village
at weekends.
016 The mother’s case on the facts is that she was treated
like a servant or slave by her husband and his family and
was powerless and without money. She was not consulted in
advance about the decision to send S to school in Pakistan
and, in any event, would have been powerless to prevent it.
She was upset at the parting and kept asking for her
daughter’s return. She eventually left her husband in
September 1994 and, thereafter, had difficulty in obtaining
the necessary help and advice. Eventually she was referred
to a solicitor who launched these proceedings but it took
time to obtain legal aid. The matter became urgent because
she was told by her sister that the family had sold two
properties and were planning all to move to Pakistan and she
was, therefore, fearful that if they all went there would be
no chance of her daughter returning.
017 The father’s case is that, although born here, S has
already spent a considerable proportion of her life in
Pakistan. The mother agrees that, after spending the first 2
years here, she spent around 4 years with the mother in
Pakistan before returning at the beginning of 1992. The
father also argues that, although he was born here and has
spent all his life here apart from visits to Pakistan, and
has a business as a market-trader here, so that he and the
mother are both habitually resident here, the case should be
seen in the context of the extended family. This is a
closely interlinked extended family with strong religious
affiliations and strong cultural and other ties with
Pakistan.
018 In that context, on the father’s case, discussions
arose in 1993 about sending S and A to Pakistan. The mother
knew all about these in advance. In the father’s second
affidavit he says that it was at the mother’s suggestion and
there is some support for this in the affidavit of the third
defendant, the paternal grandmother, but the other
affidavits tend to suggest that this was agreed between the
men and that the mother did not disagree. The father’s case
is that the mother took both girls for vaccinations and
their doctor confirms that there were two visits for
vaccinations in January 1994 although not who took them
there. There was a farewell party attended by some 30
friends and family members of which the father says that a
video was taken. The mother prepared clothing for the child
and presents for her own family in Pakistan. They all went
to the airport together. Since then there has been contact
over the telephone and S is well and happy in Pakistan. That
case is supported in those essentials by affidavits from the
other defendants. The brother and sister-in-law say that
although the mother did not actively agree to S’s going to
Pakistan she did not dissent or protest. Hence, it is argued
for the father that, even if the mother did not promote the
journey she acquiesced in it and participated in the
arrangements and that, therefore, she agreed to a change in
the child’s habitual residence.
019 The mother and Official Solicitor, on the other hand,
argue that even if the mother did know longer in advance
than she says and did participate in <* page 771> the
arrangements as suggested, this is not sufficient in the
circumstances to change S’s habitual residence.
020 This case is extremely unusual in that it is common
ground that both parents’ habitual residence remains in this
country. Indeed, the father is particularly strong on this
point. It follows that the case-law on parents who live in
different countries is not directly in point. What, then, is
meant by habitual residence? In cases of this nature the
most frequently cited authority is that of Lord Brandon of
Oakbrook in Re J (A Minor) (Abduction: Custody Rights)
[1990] 2 AC 562 at p 578, sub nom C v S (A Minor)
(Abduction) [1990] 2 FLR 442 at p 454. The quotation is as
follows:
‘The first point is that the expression
“habitually resident”, as used in Art 3 of the
Convention, is nowhere defined. It follows, I
think, that the expression is not to be treated
as a term of art with some special meaning, but
is rather to be understood according to the
ordinary and natural meaning of the two words
which it contains. The second point is that the
question whether a person is or is not
habitually resident in a specified country is a
question of fact to be decided by reference to
all the circumstances of any particular case.’
021 The third point need not concern us and I will return
to the fourth in a moment.
022 A series of propositions has therefore been advanced
by Mr Ryder on behalf of the Official Solicitor as follows.
First, if the parents are together the habitual residence of
the child is that of the parents unless there is a settled
agreement between them to the contrary. It seems to me that
that proposition must be right. It flows logically from the
parents’ shared parental responsibility which entitles them
to determine where the child lives. Habitual residence
cannot, for this purpose, be identical to domicile which is
still dependent upon the father (although it is by no means
impossible that the law on that point will be changed in the
not too distant future). Of course, normally, where both
parents have parental responsibility each can act alone
without the agreement of the other, but in a matter such as
this, although one parent would be able to send the child
abroad, I would not agree that one parent could unilaterally
change the child’s habitual residence without the agreement
of the other unless circumstances arose which, quite
independently, would point to a change in the child’s
habitual residence. I draw that proposition, albeit in a
case where parents were in different countries, from the
decision of Wall J in the case of Re S (Minors) (Abduction:
Wrongful Retention) (19941 Fam 70, [1994] 1 FLR 82. This
approach has been quite frequently adopted in the context of
Hague Convention cases. It stands to reason that that
Convention could not operate were one parent to be able,
unilaterally, to change the habitual residence of the child
because the whole purpose of the Convention is to stop
parents doing just that. So, for all those reasons, I accept
Mr Ryder’s first proposition.
023 His second proposition is that if the parents are
separated, the child’ s habitual residence is that of the
parent who has the right to determine where the child shall
live, what we used to call the custodial parent, and <* page
772> that follows from Lord Brandon’s fourth proposition in
Re J, sub nom C V S:
‘The fourth point is that, where a child of J’s
age is in the sole lawful custody of the mother,
his situation with regard to habitual residence
will necessarily be the same as hers.’
024 I would qualify that proposition with a query as to
whether, where one has an older child, because J was a very
small child, and the parent who has the right to determine
where the child shall live sends the child to a different
country from the one in which she lives, that parent can, in
effect, change the child’s habitual residence so that it is
not the same as her own. I raise that simply as a query to
indicate that there may be qualifications to the proposition
which Mr Ryder has advanced.
025 Thirdly, if the parties are separated but there is no
such order and the parents are still both resident in this
country, what is the position? It is on this point that
three different cases are advanced. It was argued for the
father that on the facts there was an agreement between the
parties that the child should change her habitual residence
and that, that agreement having been made, there would have
to be a similar agreement before it could be changed back.
In arguing this he points to the history, the extended
family and the cultural factors leading to the decision that
the child should not only go to school but also live in
Pakistan.
026 It was argued for the mother that, on the father’s own
evidence, this was done primarily for the purposes of
education. There are many features which support this and
which have been pointed to in the various affidavits. I need
not go through these in detail, but the father’s first
affidavit, for example, states that it was to be for a
period of one to 2 years; that it could always be subject to
review; that it was intended that the child should come back
for at least some holidays; and the father also states quite
clearly in his first affidavit that the child would have
been returned without the need for these proceedings if only
the mother had asked. So it is argued that it was a limited
agreement for a particular purpose, very like sending a
child to a boarding-school in another country and not,
therefore, an agreement to change her habitual residence.
027 The Official Solicitor adopts all of that. But Mr
Ryder also argues that, even if there was an agreement for
the child to live abroad, if the parents are both still
habitually resident here and that agreement fails for any
reason it cannot be a settled agreement that the child’s
habitual residence is to be abroad. It cannot, in reality,
be as the father would have it that, having once agreed to
send the child abroad, both must agree to her return for her
to be habitually resident here, because that would leave the
courts of this country, or any other country where the
parents were both resident, without the power to determine a
dispute between the parents as to where their child should
live and it cannot be right to require them to litigate that
in a foreign country.
028 It is obvious common sense that where both parents
have equal responsibility, as they have here, and both are
habitually resident here, a strong burden is placed upon
anyone who wishes to show that their child’s habitual
residence for these purposes is different from theirs. I do
not doubt that it is open to them to agree to change their
child’s habitual <* page 773> residence without changing
their own but an agreement to send their child abroad to a
boarding-school would undoubtedly not suffice.
029 No authorities directly relevant to this point have
been cited to me but one may, in passing, refer to s
72(1)(a) of the Adoption Act 1976. This provides that in
determining where a child has his home there is to be
disregarded absence in hospital or boarding-school or any
other temporary absence. The concept of a home, although not
necessarily identical to, must be very like that of habitual
residence. Similar provision is made as to the definition of
‘ordinary residence’ in s 105(6) of the Children Act 1989.
030 I accept the father’s point that on the evidence there
was something more to this than simply sending the child to
a boarding-school. There are many indications throughout the
affidavits that education was the principal purpose, but
there may be strong reasons why a family such as this would
want their girls brought up in the religious and cultural
environment in Pakistan rather than to be exposed throughout
perhaps their most impressionable years to the somewhat
contradictory pressures of education and life in this
country. I understand all of that. Nevertheless, the
evidence indicates a temporary and conditional agreement as
the father’s first affidavit makes plain. So that, even
accepting all the points urged on behalf of the father, I
hold that that was not sufficient to change the child’s
habitual residence in any event.
031 Although it is not strictly necessary for me to do so,
I would further accept the argument of the Official
Solicitor that, even if there had been such an agreement as
would change the child’s habitual residence for the time
being, it would have required the continued agreement of
both parents to make that situation continue. Despite the
normal principle that each parent can act unilaterally it
must be possible for either parent in that position, and in
the absence of a court order, to revoke their agreement to
their child being habitually resident abroad, so as to have
the dispute between them resolved in their own home country
where they both are.
032 And so, for all these reasons, I hold that S is
habitually resident in this country and that, both on that
basis and on the basis of her presence here, this court has
jurisdiction to determine her future. I would emphasise,
however, that I do not, by so holding, in any way indicate
that this will resolve the issue between the parents as to
what will be in this child’s best interests when that comes
to be determined. As I have already indicated, I can well
see how the wish of some members of her family to have her
brought up in Pakistan may have merit although that would
have to be set against the disadvantages of her absence from
her mother, with whom she has lived all her life up until
earlier this year, and indeed the other members of her
family, including her father, who are settled here. But
those are all matters for another day and what I have
already determined is sufficient to decide the preliminary
issue before me today.
Solicitors:
Craig & Co for the mother
Irzoin Mitchell for the father and members of his family
Official Solicitor
DEBORAH DINAN-HAYWARD Barrister