In the case of Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 the Supreme Court (by a majority of 3:2) have delivered a judgment of huge practical significance which stops children being left in a legal limbo when they are removed from one jurisdiction and taken to another by one of their parents.
In short, the Supreme Court has allowed an appeal by a non-biological mother of a child, holding that the unilateral removal by the child's biological mother (in February 2014) to Pakistan did not result in the child losing her English habitual residence, and the English court therefore retained jurisdiction to make decisions about her welfare.
Rather than focusing on the intentions of the abducting parent, this landmark decision now means that the child is unlikely to lose their pre-existing habitual residence at the same time as the abducting parent.
The issues involved are particularly salient in the modern world where increasing numbers of families are becoming internationally mobile. The decision will be of great interest to families and family lawyers globally as it highlights that the focus in international custody cases should be on the child and not the parent. It also highlights the ability and willingness of a state to make orders affecting its citizens regardless of where they may be located.
In the wake of the Supreme Court's clarification of these issues, it is anticipated that parents may now be more likely to engage in negotiation and mediation to resolve child disputes of an international nature.
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