Ayesha Hasan successful in High Court with argument about habitual residence

01/09/2021

Ayesha Hasan, Head of Chambers at 3 Dr Johnson’s Buildings, successfully argued that the High Court should not require the return of a child from Pakistan under the inherent jurisdiction.

Inherent jurisdiction – habitual residence – degree of integration

H & R [2021] EWHC 2024 (Fam)

S, a boy now aged 13, was taken to Pakistan by his mother. After she left, S remained in Pakistan to pursue secondary education. His father supported S remaining in Pakistan in the care of the paternal family, which was what S desired.

S’s mother applied for an order under the inherent jurisdiction to ward S and require his return. She made allegations of domestic abuse in England, and of inappropriate touching of S in Pakistan. Essex Children’s Social Care had received a referral in 2016, after a disclosure from S about mistreatment from his mother.

Mr Justice MacDonald reviewed the law concerning habitual residence, the test for which is unaffected by Brexit. The child’s residence must reflect some degree of integration in a social and family environment. This is a question of fact, established on the basis of all the circumstances in a particular case. In relation to the inherentjurisdiction, which had been reasonably invoked by the mother, the question of summary return hinges on the child’s welfare.

MacDonald J viewed as significant the fact S had previously spent 11 months attending the school in Pakistan, that S’s expressed wishes were balanced and cogent, and that there had apparently been an agreement between the parents that S would remain in Pakistan. He held that there was no basis for the court to make findings of the inappropriate touching event alleged by the mother.

S demonstrated a degree of integration sufficient to ground the conclusion that he was habitually resident in Pakistan. The court did not have jurisdiction in respect of S and the application was, accordingly, dismissed.

Link to Judgment