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SUPREME COURT BARONESS HALE DP, LORD CLARKE, LORD WILSON, LORD SUMPTION AND LORD TOULSON SCJJ 03 February 2016

[2015] EWCA Civ 886, [2016] UKSC 4

Family proceedings – Jurisdiction – Habitual residence – Child conceived through sperm donation during relationship between mother and same-sex partner – Partner acting as child’s second parent but not having parental responsibility – Mother taking child to Pakistan permanently without informing partner following breakdown of their relationship – Partner seeking shared residence and contact orders before learning of child’s removal – Partner subsequently seeking orders under inherent jurisdiction for child to be made a ward of court and be returned to England – Whether a child’s habitual residence in one state is lost immediately on removal with settled intention to move to another state.

The mother, a British national of Pakistani origin, had been in a same-sex relationship with the applicant (‘the partner’) from 2004 to 2011. During their relationship, the mother underwent artificial insemination and gave birth to B in 2008. The mother was B’s primary carer and the partner took the role of her second parent but did not have parental responsibility for her. Their relationship broke down in acrimonious circumstances and the partner left the family home. This caused complications in the partner’s relationship with B, with the mother reducing the level of contact between them over time. On 3 February 2013, without informing the partner, the mother moved to Pakistan with B. Unaware of this, on 13 February 2014, the partner sought orders under the Children Act 1989 for shared residence of B or for contact with her. Following her discovery that B was in Pakistan, the partner applied for orders under the court’s inherent jurisdiction for B to be made a ward of court, and for her summary return to England. The judge found that, when departing for Pakistan, the mother had genuinely intended to make a new life for herself and B there. She concluded that B had lost her English habitual residence on leaving England, though it was probable that neither the mother nor B had acquired habitual residence in Pakistan by 13 February 2014. It followed that the court had no jurisdiction to determine the partner’s application under the 1989 Act, and the fact that B had wished to remain in touch with her was not enough to sustain a continuation of her habitual residence in England. The judge further held that the case lacked the ‘dire and exceptional’ circumstances required for the court to exercise its inherent jurisdiction. The Court of Appeal upheld that decision and the partner further appealed. The main issue for determination was the point at which habitual residence was lost by a child whom a parent had removed from the state of their habitual residence with the settled intention to permanently reside in another state.

Held – (1) (Lords Clarke and Sumption SCJJ dissenting) It was not in the interests of children routinely to be left without a habitual residence. The presence of children in a particular state on a particular day was an unsatisfactory foundation of jurisdiction because, by moving them from one state to another, one of the adults could easily invoke a favourable jurisdiction or pre-empt invocation of an unfavourable one. A child’s habitual residence in a state was the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to the child. Consequently, the interpretation of the concept of habitual residence should be consonant with its international interpretation. The longstanding domestic analysis of the circumstances in which habitual residence could be lost (ie that a person who left the country of his habitual residence with a settled intention not to return but to take up permanent residence in a second country might cease to be habitually resident in the first country in a single day but would not immediately become habitually resident in the second country) should no longer be regarded as correct. The modern concept of a child’s habitual residence operated in such a way as to make it highly unlikely, albeit conceivable, that a child would be in the limbo of having no habitual residence. It operated in the expectation that when a child gained a new habitual residence he lost his old one. The new criterion required not the child’s full integration in the environment of the new state but only a degree of it. It was clear that in certain circumstances the requisite degree of integration could occur quickly. The identification of a child’s habitual residence was overarchingly a question of fact. A child’s achievement of the requisite degree of integration would depend on the depth of the child’s integration in the old state, the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, and the number of central members of the child’s life in the old state who moved with him. In asking whether B’s wish to remain in touch with the partner was enough to sustain a continuation of her habitual residence in England on 13 February 2014, the trial judge had asked herself far too narrow a question. The question was whether B had by then achieved the requisite degree of disengagement from her English environment. Highly relevant to the answer would be whether she had by then achieved the requisite degree of integration in the environment of Pakistan. Taking into account all the relevant factors of the present case, on balance B retained habitual residence in England on 13 February 2014. Accordingly, the partner’s application should proceed to substantive determination (see [27], [30], [31], [39], [45]–[48], [51], [57], below). Re J (a minor) (abduction: custody rights [1991] FCR 129 disapproved; Proceedings brought by A (Case C‐523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C‐497/10 PPU) [2012] Fam 22 applied; Re A (children) (jurisdiction: return of child) sub nom Re A v A (children: habitual residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60, [2013] 3 FCR 559 considered.

(2) While there were reasons for caution when deciding whether to exercise the court’s inherent jurisdiction, circumstances justifying its use were not confined to dire and exceptional cases or those at the very extreme end of the spectrum. The real question was whether the circumstances were such that this British child required that protection (see [53], [59], [60], below).

Decision of the Court of Appeal [2015] EWCA Civ 886, [2016] 2 FCR 307 reversed.

Cases referred to

A (children) (jurisdiction: return of child), sub nom Re A v A (children: habitual residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60, [2013] 3 FCR 559, [2014] 1 All ER 827, [2014] AC 1, [2013] 3 WLR 761, [2014] 1 FLR 111.

A v A (return order on the basis of British nationality) [2013] EWHC 3298 (Fam), [2014] 2 FLR 244, [2013] All ER (D) 148 (Nov).

A, Proceedings brought by (Case C‐523/07) sub nom Re A (area of freedom, security and justice) [2010] Fam 42, [2009] ECR I-2805, [2009] 2 FLR 1, [2009] All ER (D) 286 (Jun), ECJ.

AF (a minor) (abduction), Re [1992] 1 FCR 269, sub nom Re F (a minor) (child abduction) [1992] 1 FLR 548, CA.

Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FCR 385, [2001] 1 FLR 951.

AR v RN (children) (wrongful retention: habitual residence), sub nom Re R (Children) (Reunite International Child Abduction Centre intervening) [2015] UKSC 35, [2015] 2 FCR 570, [2015] 3 All ER 749, [2016] AC 76, [2015] 2 WLR 1583, [2015] 2 FLR 503.

B, Re, RB v FB (forced marriage: wardship: jurisdiction) [2008] EWHC 1436 (Fam), [2008] 2 FLR 1624.

Dadourian Group International Inc v Simms [2006] EWCA Civ 399, [2006] 3 All ER 48, [2006] 1 WLR 2499, CA.

E (child abduction), Re, sub nom F v S (wardship: jurisdiction) [1991] FCR 631, [1991] 2 FLR 349; rvsd in part [1992] 1 FCR 541, [1993] 2 FLR 686, CA.

E v B (Case C‐436/13) [2015] 1 FCR 318, [2015] Fam 162, [2014] 3 WLR 1750, [2015] 1 FLR 64.

Hamlin v Hamlin [1985] 2 All ER 1037, [1986] Fam 11, [1985] 3 WLR 629, [1986] 1 FLR 61, CA.

Harben v Harben [1957] 1 All ER 379, [1957] 1 WLR 261.

Harris v Harris [1949] 2 All ER 318, DC.

Hope v Hope (1854) 4 De GM & G 328, (1854) 43 ER 534, [1843–60] All ER Rep 441.

J (a child) (contra mundum injunction), Re, sub nom Re J (reporting restriction: internet: video) [2013] EWHC 2694 (Fam), [2014] 2 FCR 284, [2014] 1 FLR 523.

J (a minor) (abduction: custody rights), Re sub nom C v S (minor: abduction: illegitimate child) [1991] FCR 129, [1990] 2 All ER 449, [1990] 2 AC 562, [1990] 3 WLR 492, [1990] 2 FLR 442, HL.

Joyce v DPP [1946] 1 All ER 186, [1946] AC 347, HL.

KL (a child) (abduction: habitual residence: inherent jurisdiction), Re [2013] UKSC 75, [2014] 1 FCR 69, [2014] 1 All ER 999, [2014] AC 1017, [2013] 3 WLR 1597, [2014] 1 FLR 772.

KM (a minor) (habitual residence), Re [1996] 2 FCR 333, [1996] 1 FLR 887, CA.

KR (a child) (abduction: forcible removal by parents), Re [1999] 2 FCR 337, [1999] 4 All ER 954, [1999] 2 FLR 542.

LC (children) (abduction: habitual residence: state of mind of child), Re, sub nom Re LC (children) (Reunite International Child Abduction Centre, intervening) [2014] UKSC 1, [2014] 1 FCR 491, [2014] 1 All ER 1181, [2014] AC 1038, [2014] 2 WLR 124.

Liddell’s Settlement Trusts, Re, Liddell v Liddell [1936] 1 All ER 239, [1936] Ch 365, CA.

M (children) (wardship), Re [2015] EWHC 1433 (Fam), [2016] 2 FCR 280.

Marinos v Marinos [2007] EWHC 2047 (Fam), [2008] 2 FCR 47, [2007] 2 FLR 1018.

Mercredi v Chaffe (Case C‐497/10 PPU) [2012] Fam 22, [2011] 3 WLR 1229, [2010] ECR I-14309, [2011] 1 FLR 1293, ECJ.

N (a child) (abduction: appeal), Re [2012] EWCA Civ 1086, [2013] 1 FLR 457, [2012] All ER (D) 141 (Jul).

P (GE) (an infant), Re [1964] 3 All ER 977, [1965] Ch 568, [1965] 2 WLR 1, CA.

R v Sandbach Justices, ex p Smith [1950] 2 All ER 781, [1951] 1 KB 62, DC.

Willoughby (an infant), Re (1885) 30 Ch D 324, CA.

Wookey v Wookey, Re S (a minor) (injunction) [1991] FCR 811, [1991] Fam 121, [1991] 3 All ER 365, [1991] 3 WLR 135, [1991] 2 FLR 319, CA.

Appeal

The applicant, the same-sex partner of B’s mother, appealed from a decision of Hogg J on 31 July 2014 ([2014] EWHC 3017 (Fam)) dismissing her applications for shared residence or contact orders under the Children Act 1989 and her applications under the inherent jurisdiction of the High Court for orders for B to be made a ward of court and be returned to England. The facts are set out in the judgment Black LJ.

David Williams QC and Alistair Perkins (instructed by Freemans) for the appellant.

William Tyler QC and Hannah Markham (instructed by Goodman Ray) for the respondent.

Richard Harrison QC, Madeleine Reardon and Jennifer Perrins (instructed by Farrer & Co LLP) for the intervener Reunite International Child Abduction Centre.

6 August 2015. The following judgment of the court was delivered.

CA

BLACK LJ.

[1] This is the judgment of the court to which we have all contributed.

[2] P was born in April 2008 and is now 7 years old. She was conceived by IVF, her father being an unknown donor. At the time of her conception, her mother (the respondent to this appeal) was in a relationship with another woman (the appellant) with whom she was living. This appeal arises from the appellant’s attempts to have contact with P following the parties’ separation. It is an appeal from Hogg J’s dismissal, on 31 July 2014, of the appellant’s applications under the Children Act 1989 and under the inherent jurisdiction of the High Court.

The factual background in outline

[3] From birth, P was brought up in the household of the appellant and the respondent. The respondent was at all times her primary carer but the appellant played a role in her care when she was available. Since December 2011, when the appellant and the respondent separated, P has lived with the respondent. To begin with, the appellant moved out of the parties’ jointly owned home and the respondent remained living there with P. On 3 February 2014, however, the respondent left this country to take up residence in Pakistan, taking P with her. They have remained in Pakistan since then.

[4] The adults have been in conflict since their separation. The appellant continued to see P but it was not always easy to arrange contact and over time it reduced so that by the time the respondent went to Pakistan, the appellant was seeing P only once every three weeks for about two hours. The appellant had been trying to obtain more contact with P. In October 2013, she wrote to the respondent proposing a shared residence order and saying that she would take proceedings if that was not agreed. The parties attended a mediation session in January 2014 and there was to be another in February but then the appellant found herself unable to communicate with the respondent. Not knowing that the respondent had departed for Pakistan, she commenced Children Act proceedings on 13 February 2014, also seeking orders to assist her to locate P.

[5] The Children Act proceedings came to the respondent’s attention by early May 2014 and her solicitors then informed the appellant that the respondent and P had been in Pakistan since 3 February. The respondent challenged the jurisdiction of the English court to entertain the proceedings and, on 12 May 2014, directions were given with a view to the issue being determined by the High Court.

[6] On 6 June 2014, the appellant made an application for an order under the inherent jurisdiction. The relief sought was that P should be made a ward of court and her summary return to this jurisdiction should be ordered. By way of explanation as to why the application was made, the application form said:

‘The Applicant seeks a summary return of her daughter under the inherent jurisdiction. She is concerned about P’s welfare having been removed from England and Wales and taken to Pakistan [sic]. A return to England and Wales would also facilitate contact with her daughter.’

[7] The proceedings culminated in the hearing before Hogg J, who was to consider the question of jurisdiction, whether P should be a ward of court during her minority, whether summary return should be ordered and the question of contact (see para 7 of the order of Moylan J of 9 June 2014). The respondent was ordered to attend the hearing before Hogg J in person but she did not comply with this, nor had she complied with an order to attend at an earlier stage in the proceedings. She was represented, however, and she gave evidence by telephone during the two-day hearing. The appellant gave evidence in person.

Jurisdiction in outline

[8] Two alternative bases for jurisdiction were asserted, namely habitual residence and nationality, P being a British national. Habitual residence was the preferred option. If P was habitually resident here on 13 February 2014 when the Children Act proceedings were begun, and there was therefore jurisdiction for those proceedings, there would be a comparatively straightforward route by which the appellant could achieve a resolution of the issues over P. However, if it could not be established that P was habitually resident here on 13 February 2014, the appellant asked Hogg J to exercise the inherent jurisdiction on the basis of nationality.

[9] Hogg J considered the provisions of the Family Law Act 1986, ss 1 to 3 which she cited in her judgment. As relevant, these provide as follows:

‘1. Orders to which Part I applies

(1) Subject to the following provisions of this section, in this Part “Part I order” means—

(a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order;

…

(d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children—

(i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but

(ii) excluding an order varying or revoking such an order;

…

2. Jurisdiction: general

(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless—

(a) it has jurisdiction under the Council Regulation [(EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility] or the Hague Convention [on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (The Hague, 19 October 1996; Cm 7727], or

(b) neither the Council Regulation nor the Hague Convention applies but—

(i) [matrimonial or civil partnership proceedings]

(ii) the condition in section 3 of this Act is satisfied.

…

(3) A court in England and Wales shall not make a section 1(1)(d) order unless—

(a) it has jurisdiction under the Council Regulation or the Hague Convention, or

(b) neither the Council Regulation nor the Hague Convention applies but—

(i) the condition in section 3 of this Act is satisfied, or

(ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of the powers is necessary for his protection.

3. Habitual residence or presence of child

(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned—

(a) is habitually resident in England and Wales, or

(b) is present in England and Wales and is not habitually resident in any part of the United Kingdom

…’

[10] Hogg J found that P was not habitually resident here on 13 February 2014, in essence because she had lost her habitual residence in this country upon her departure with the respondent for Pakistan, albeit that, in the judge’s view, she had probably not yet acquired a habitual residence in Pakistan. In the light of her finding as to habitual residence, the judge held that there was no jurisdiction to entertain the Children Act proceedings.

[11] As for the inherent jurisdiction, in light of P’s British nationality, there is no doubt that it did exist, in so far as it had not been removed by the jurisdictional provisions of the Family Law Act 1986 which are set out above. An order made in the exercise of the inherent jurisdiction, which gives care of the child to any person or regulates contact, would come within s 1(1)(d) of the Act and, on the facts of this case, there would not be jurisdiction to make such an order because the jurisdictional provisions of the Act would not be satisfied. However, a return order is not caught by s 1(1)(d) (see Re A (children) (jurisdiction: return of child), sub nom Re A v A (children: habitual residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60, [2013] 3 FCR 559, [2014] 1 All ER 827, hereafter ‘A v A’) and is therefore not within the jurisdictional prohibitions in s 2(3) of the Family Law Act 1986. This explains the application made by the appellant on 6 June 2014 for such an order. The question for Hogg J in relation to the inherent jurisdiction was, accordingly, not whether the jurisdiction existed, but whether this was an appropriate case in which to exercise it. The appellant argued that it was, principally because she would be unable to litigate about P in Pakistan because of the approach in that country to homosexuality which meant, she said, that the only forum to resolve issues over P’s welfare was the courts of England and Wales.

[12] Hogg J declined to exercise the inherent jurisdiction. She reviewed certain of the authorities on the question of when it is appropriate to do so but concluded that the facts of the present case did not justify such a course, it being ‘[a]t heart a contact application which does not come within the “extreme circumspection” or “dire circumstances” as referred to’ in the jurisprudence.

Grounds of appeal

[13] The appellant appealed on two grounds. She complained, first, that the judge’s finding as to habitual residence was wrong. She argued that P remained habitually resident in England and Wales as at the relevant date, 13 February 2014, because she was still integrated in a social and family environment here. Her second ground of appeal was that Hogg J was wrong to conclude that she should not exercise the inherent jurisdiction, in particular failing to have regard to P’s best interests as a primary consideration in reaching her determination and to recognise that the obstacles to the appellant litigating about P in Pakistan meant that England was the only available jurisdiction which could determine the dispute about P’s welfare. It was argued that the refusal to exercise the jurisdiction was a breach of the appellant’s art 6 and art 8 rights (see European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1, Pt I to the Human Rights Act 1998).

Habitual residence

Common ground

[14] The parties agreed before Hogg J, as before us, that habitual residence is a question of fact and that it corresponds to the ‘place which reflects some degree of integration by the child in a social and family environment’. They were also in agreement that, at least in theory, habitual residence can be lost on departure from a country without a new habitual residence necessarily being acquired instantly elsewhere, so that there can be a period of time when a person has no habitual residence. It will be necessary to look at the law relating to habitual residence in a little more detail in due course, because the appellant criticised Hogg J’s approach to it. However, these agreed propositions are sufficient for present purposes.

[15] The starting point for Hogg J’s examination of habitual residence was the agreed fact that the respondent and P were habitually resident in this country until their departure on 3 February 2014. The parties were also agreed that the respondent was the sole legal parent and the sole person with parental responsibility for P and also that the removal of P from the jurisdiction was not wrongful (para [13]).

Some further facts

[16] Hogg J’s judgment contains a considerable amount of information which is pertinent to the question of habitual residence. Some has been referred to already but some further facts need to be outlined here to complete the context for our decision. There has been no attempt on appeal to challenge the facts found by the judge or set out in her judgment, the concentration being rather on her application of the law to the facts.

[17] Early on in her judgment (para [2]), the judge set out the parties’ origins. The respondent was born in Africa of Pakistani origins and is a British citizen. Her immediate family live in England but there are other members of the wider family living in Pakistan. The appellant was born in England, her mother being a Kenyan Indian and her father an Indian from the Punjab.

[18] The appellant and the respondent met in 2003 and, in the course of their relationship, which lasted between 2004 and 2011, they bought their own home in their joint names. They did not enter into a civil partnership and, until she made her Children Act application in February 2014, the appellant had not made any application for parental responsibility or made any other application under the Children Act.

[19] At para [5] of the judgment, Hogg J said of the period following the parties’ separation:

‘After December 2011, when the applicant left, there has only been conflict. The applicant has not played any role in the childcare or arrangements for the child’s welfare. She has not played a part or exercised any parental responsibility. P continued with her mother to live in the jointly owned home. Both the ladies paid an equal share of the mortgage throughout that time and since her departure the mother continued to pay her share of the mortgage to maintain her asset.’

[20] At para [4], the judge described how the respondent had been in part-time employment following the separation but finding life difficult financially and struggling with work, home and childcare. Then, in July 2013, she was made redundant and received a redundancy payment which gave her time to think and reassess her life. It was suggested to her that there might be business opportunities for her in Pakistan and, in November 2013, she went without P on a fact-finding trip to Pakistan to see whether she could relocate there. Between the end of November 2013 and February 2014, she decided to do so. She had a job, she had researched English-speaking schools there, and she could stay with a friend until she found a home. The appellant’s case was that the respondent fled to Pakistan from the forthcoming mediation and the potential litigation over P. Hogg J rejected that (paras [6] and [28]). She accepted that the respondent intended to create a new life for herself and P in Pakistan.

[21] At para [7], Hogg J described what happened at the time of the respondent’s departure for Pakistan as follows:

‘On 3 February the mother left, she says permanently with no intention to return. The application made by the applicant is dated 13 February, ten days later. The mother was not aware of that application until shortly after 29 April this year when it was received by her parents. By then the mother had settled to some extent in Pakistan. On … she had entered a tenancy for a home for herself and P and moved to that home. On … she located an English speaking school for P, paid the fees and P commenced at that school on … The mother also applied for an ID card on her arrival. She obtained that on … and that card gives her indefinite leave to remain and with that P has the right to remain. Up until then they had entered via the family visa card for British citizens who are of Pakistani origin. That gave her about three months’ leeway. She has also been working and had been working since the date of her arrival.’

[22] The keys to the home in England were sent to the appellant with a covering letter which said nothing about the move to Pakistan. The respondent told the judge that she had the support of her family who knew about her plan (para [27]). At para [14], the judge set out the respondent’s case as to P’s perception of the move as follows:

‘P knew they were going on a long-term basis, she had said goodbye to her family and school, she had packed up her home and possessions and she was going with her mother, her primary carer.’

[23] The appellant argued (see para [15]) that P was still integrated here. She focused particularly upon P’s relationship with her and the impact of the move upon it. She said that P had written her a note at Christmas 2013 saying that she was missing her and that during the last contact visit, at the end of January 2014, P told the appellant that they were going away, that she was sad and scared that the appellant would not be able to find her. The judge proceeded on the basis that, as everyone accepted, the appellant was ‘a significant person in P’s life’ (para [28]) and that P wanted to keep in touch with her.

Hogg J’s determination

[24] Hogg J considered the possibility that the habitual residence position of P and her mother might be different. She specifically asked herself whether P’s wish to remain in touch with the appellant was enough to indicate that she retained her habitual residence in England. She set out her conclusion at para [29]:

‘I must look at the facts. The mother is the sole legal parent and in moving [P] she had planned a life away from this country. It was not a wrongful removal. She was exercising her parental responsibility. P’s wish to remain in touch is something that I must consider. It does not necessarily mean that the child has to remain in the country. There are many children throughout the world who remain in touch with families or members of a family or even friends when they are relocated by their parents. This is another relocation and a child wishing to remain in touch with a significant person. In my view her wish to remain in touch with the applicant does not justify making or continuing an individual habitual residence in this country when the mother has abandoned her own. I therefore find that not only did the mother lose her habitual residence but so did P from upon their departure from this country … I am not saying that they had acquired a new habitual residence by then … they lost their habitual residence in this country and in my view probably they had not acquired habitual residence in Pakistan at that stage.’

[25] This conclusion had been preceded, in paras [26] to [28], by a review of the evidence which made it clear that Hogg J was aware that her factual investigation required an analysis of all the facts surrounding the respondent’s move to Pakistan, not confined to the question of her relationship with the appellant which she examined in para [29].

The appellant’s criticism of Hogg J’s approach

[26] The appellant sought to persuade us that although Hogg J had referred to most of the relevant authorities, she had omitted to cite (and to consider) the central passages which should guide a judge when determining an issue of habitual residence and had got the emphasis wrong in relation to the law. In particular, it was submitted that she had focused on what Lord Brandon said in Re J (a minor) (abduction: custody rights) [1991] FCR 129, [1990] 2 All ER 449 when she should have made reference to the decision of the Supreme Court in A v A, especially at [54] of Baroness Hale’s judgment, and to two European decisions, namely Proceedings brought by A (Case C‐523/07) [2010] Fam 42, [2009] ECR I-2805 and Mercredi v Chaffe (Case C‐497/10 PPU) [2012] Fam 22, [2011] 3 WLR 1229.

[27] Fundamental respects in which Hogg J erred, in the appellant’s submission, included failing to carry out a comparative balancing exercise of what P had left behind in this country and what awaited her in Pakistan, and concentrating too much on the respondent’s intention rather than evaluating the whole picture. That picture included, in the appellant’s submission, the factors listed by Mr Perkins (who represented the appellant on his own before Hogg J) in his closing submissions, such as the short period of time between the departure from England and the relevant date, the fact that this was P’s first visit to Pakistan and that she does not speak Urdu, the contrast between her settled existence in this country where she was attending school and the temporary arrangements that there were initially in Pakistan, and that her family and social relationships were in this country not Pakistan, particularly (but not only) with the appellant. It was submitted that as a matter of fact it is only in the most carefully planned move of a whole family unit that habitual residence will be lost in a day and that it did not happen here, given P’s lifetime integration into a family, school and social environment in this country.

[28] There is clear guidance from the Supreme Court on the question of habitual residence, the matter having been considered on no fewer than four occasions since 2013, namely in A v A, Re KL (a child) (abduction: habitual residence: inherent jurisdiction) [2013] UKSC 75, [2014] 1 FCR 69, [2014] 1 All ER 999, Re LC (children) (abduction: habitual residence: state of mind of child) [2014] UKSC 1, [2014] 1 FCR 491, [2014] 1 All ER 1181 and, in a decision which was handed down after the hearing in the instant case, AR v RN (children) (wrongful retention: habitual residence), sub nom Re R (Children) (Reunite International Child Abduction Centre intervening) [2015] UKSC 35, [2015] 2 FCR 570, [2015] 3 All ER 749 (‘Re R’). In these circumstances, it is unnecessary for this court to restate the principles. The European formulation of the test (to be found in Proceedings brought by A at para 2, as quoted in A v A at para [48]) is the correct one, namely that ‘the concept of “habitual residence” … must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment’. The inquiry is a factual one, requiring an evaluation of all relevant circumstances in the individual case. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It should not be glossed with legal concepts. And, as Lord Reed observed at [18] of Re R, when the lower court has applied the correct legal principles to the relevant facts, its evaluation will not generally be open to challenge unless the conclusion which it reached was not reasonably open to it.

[29] The arguments advanced by the appellant and also on behalf of the intervener, Reunite, appeared at times to amount to an invitation to swathe habitual residence in sub-principles, or glosses, or comments, in a way which would fly in the face of the determinedly factual approach of the European jurisprudence and the Supreme Court. So, for example, we were invited to say that it would only be in exceptional cases that a child would lose one habitual residence before acquiring another. And that if someone in the child’s life can be classed as their ‘psychological parent’, they may carry greater weight in the factual evaluation than another person who is significant in the child’s life. As to the first proposition, it may be that there will turn out to be relatively few cases in which the habitual residence of a child does not transfer seamlessly from one country to another, but if so, that will be because the facts tend to be that way and not because the courts impose upon themselves the artificial discipline of only finding it otherwise in exceptional circumstances. As to the latter, anything which encourages satellite litigation over labels is to be avoided. It is quite unnecessary, and unhelpful, to engage in such a process when what matters is the individual facts which are likely to vary infinitely from case to case.

[30] In our view, Hogg J’s approach to the question of habitual residence was in line with the authorities. She conducted a factual inquiry focused on the correct meaning of the concept. There is no evidence that she was deflected from contemporary methodology by anything in Re J (a minor) (abduction: custody rights) (above). She recognised that P and the respondent may be habitually resident in different countries and specifically considered P’s position separately. She took into account P’s relationship with the appellant as a significant person in her life and she was well aware that the appellant did not know about, let alone agree to, the move to Pakistan. She described in her judgment the situation in this country and the situation in Pakistan in such a way as to show that she had looked both at what P was leaving and what was awaiting her in Pakistan. In short, she applied the proper principles to the relevant facts and there is no reason to interfere with her finding that P lost her habitual residence here when she left for Pakistan.

The inherent jurisdiction

[31] We turn now to consider the inherent jurisdiction.

[32] It is clearly established by the authorities, including authority at the highest level, that the court may make a child who is a British subject a ward of court even if, at the time the order is made, the child is outside the jurisdiction. The starting point is usually taken to be the decision of Lord Cranworth LC in Hope v Hope (1854) 4 De GM & G 328, (1854) 43 ER 534. Very recently the principle has been accepted by the Supreme Court in A v A. The older authorities frequently cited in this context include Re Willoughby (an infant) (1885) 30 Ch D 324, Re Liddell’s Settlement Trusts, Liddell v Liddell [1936] 1 All ER 239, [1936] Ch 365 and Re P (GE) (an infant) [1964] 3 All ER 977, [1965] Ch 568. Cases on the corresponding exercise of jurisdiction by the old Probate, Divorce and Admiralty Division or under the Guardianship of Infants Acts 1886 and 1925 include Harris v Harris [1949] 2 All ER 318, R v Sandbach Justices, ex p Smith [1950] 2 All ER 781, [1951] 1 KB 62 and Harben v Harben [1957] 1 All ER 379, [1957] 1 WLR 261.

[33] There is equally no doubt as to the basis upon which this jurisdiction is exercised in such cases. It was explained by Lord Cranworth LC in Hope v Hope (1854) 4 De GM & G 328, (1854) 43 ER 534, by Kay J and, on appeal, by Cotton LJ in Re Willoughby (an infant) (1885) 30 Ch D 324 and again by Sachs J in Harben v Harben [1957] 1 All ER 379, [1957] 1 WLR 261. For present purposes, however, we can go straight to the judgment of Pearson LJ in Re P (GE) (an infant) [1964] 3 All ER 977 at 983, [1965] Ch 568 at 587. Referring to the three cases just mentioned, Pearson LJ said this:

‘It is clear from the authorities that the English court has, by delegation from the sovereign, jurisdiction to make a wardship order whenever the sovereign as parens patriae has a quasi-parental relationship towards the infant. The infant owes a duty of allegiance and has a corresponding right to protection, and, therefore may be made a ward of court: Hope v Hope ((1854), 4 De GM & G 328 at pp 344, 345). Subsequent cases confirm that that is the basis of the jurisdiction. An infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the sovereign and so is entitled to protection, and the English court has jurisdiction to make him a ward of court …’

That this remains the basis of jurisdiction was recognised by Baroness Hale in A v A, paras [60]–[61].

[34] It may be noted, this being the basis of jurisdiction, that the power of the court to make a child who is out of the jurisdiction a ward of court extends to a child who although not a British national is travelling on a British passport: see Re P (GE) (an infant) [1964] 3 All ER 977 at 981, 984, 987, [1965] Ch 568 at 585, 589, 593, applying the principle in Joyce v DPP [1946] 1 All ER 186, [1946] AC 347.

[35] Two features of the case law are both prominent and pertinent to the issues we have to decide. The first is the repeated stress on the need for ‘extreme circumspection’ (the phrase used by Thorpe LJ in Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FCR 385, [2001] 1 FLR 951 at [42]) in deciding to exercise the jurisdiction where the child is outside the jurisdiction. In A v A, para [62], Baroness Hale helpfully collected some examples of recent phraseology:

‘… in Al Habtoor v Fotheringham [2001] 1 FCR 385 at [42], [2001] 1 FLR 951 Thorpe LJ advised that the court should be “extremely circumspect” and “must refrain from exorbitant jurisdictional claims founded on nationality” over a child who was neither habitually resident nor present here, because such claims were outdated, eccentric and liable to put at risk the development of understanding and co-operation between nations. But in Re B, RB v FB (forced marriage: wardship: jurisdiction) [2008] EWHC 1436 (Fam), [2008] 2 FLR 1624, Hogg J did exercise the jurisdiction in respect of a 15-year-old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High Commission in Islamabad asking to be rescued from a forced marriage and helped to come to Scotland to live with her half-brother. The High Commission wanted to help her but felt unable to do so without the backing of a court order. Hogg J made the girl a ward of court and ordered that she be brought to this country. The half-brother was assessed as offering a suitable home and in fact she went to him. Hogg J explained that she thought the circumstances “sufficiently dire and exceptional”: para [10]. In Re N (a child) (abduction: appeal) [2012] EWCA Civ 1086, [2013] 1 FLR 457 McFarlane LJ commented that “if the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum” (para [29]). The facts of that case were certainly not such as to require the High Court to assume jurisdiction over the child in question.’

[36] But the principle in play here goes far back beyond the authorities referred to by Baroness Hale. Thus in Re Willoughby (an infant) (1885) 30 Ch D 324 at 331–332, Cotton LJ said:

‘Of course it is only under extraordinary circumstances that the Court would make an order when the infant is not here, and when there is no property here, and when the persons who have the custody of the infant are not subject to the jurisdiction, as they would be if resident in this country.’

In Harris v Harris [1949] 2 All ER 318 at 322, Lord Merriman P said:

‘It is the rarest possible thing for a judge of this Division of the High Court to make a custody order in respect of a child who is out of the jurisdiction.’

In R v Sandbach Justices, ex p Smith [1950] 2 All ER 781 at 783, [1951] 1 KB 62 at 67, Lord Goddard CJ said:

‘In view of … the expression of the … President’s opinion which I have quoted, we think we must take it that the court has jurisdiction to make the order though it would be very unusual to do so, and in many cases most undesirable, more especially for justices, to make such an order. It is a strong thing for a court of summary jurisdiction to make an order which the High Court makes only in most exceptional circumstances.’

In Harben v Harben [1957] 1 All ER 379 at 381, [1957] 1 WLR 261 at 265, Sachs J said that the ‘facts have to be really exceptional before an order is made’. In Re P (GE) (an infant) [1964] 3 All ER 977 at 980, [1965] Ch 568 at 582, Lord Denning MR said that the jurisdiction would be exercised only ‘where the circumstances clearly warrant it’. Pearson LJ ([1964] 3 All ER 977 at 983, [1965] Ch 568 at 587) said the jurisdiction should be exercised ‘sparingly’. Russell LJ ([1964] 3 All ER 977 at 988, [1965] Ch 568 at 595) used the word ‘exceptional’.

[37] The other striking feature of the case law is the extreme rarity of reported cases in which the jurisdiction has in fact been exercised in such cases. Orders were made in Hope v Hope (1854) 4 De GM & G 328, (1854) 43 ER 534, in Re Willoughby (an infant) (1885) 30 Ch D 324, in Re Liddell’s Settlement Trusts [1936] 1 All ER 239, [1936] Ch 365, and in Harben v Harben [1957] 1 All ER 379, [1957] 1 WLR 261. Re Willoughby (an infant) (1885) 30 Ch D 324 provides little assistance, for what was there in issue was the appointment of a guardian, though it is to be noted that the circumstances, which there is no need to go into, were variously described as ‘remarkable’ (Kay J, at 329), ‘special’ (Cotton LJ, at 334) and ‘very special and very unusual’ (Lindley LJ, at 336). The other three cases each involved what we now think of as abduction. In Hope v Hope (1854) 4 De GM & G 328, (1854) 43 ER 534, the mother had retained the child in France against her husband’s wishes. In Re Liddell’s Settlement Trusts [1936] 1 All ER 239, [1936] Ch 365, the wife had removed the children to New York. In Harben v Harben [1957] 1 All ER 379, [1957] 1 WLR 261, the father had removed the children to Jersey.

[38] Since those days there have been two important developments. First, the effect of the provisions of the Family Law Act 1986, to which we have already referred, is that the jurisdiction cannot be exercised where the claim is for ‘care of … or … contact with’ the child within the meaning of s 1(1)(d)(i): see Re E (child abduction), sub nom F v S (wardship: jurisdiction) [1991] FCR 631, [1991] 2 FLR 349. In that case, Ward J, as he then was, considered ([1991] FCR 631 at 636–637, [1991] 2 FLR 349 at 356) whether it was nonetheless open to him to make a return order:

‘If proceedings in wardship were instituted, but … no application was made for care or control or for access, and where by definition no custody order was being sought, it could be argued that the habitual residence basis of jurisdiction did not apply. That would leave the court in wardship free to order the minor’s return to the jurisdiction; once returned to the jurisdiction, the plaintiff could then apply for a custody order. Arguably, in that event, jurisdiction could arise on the ground provided by s 2(2)(b), namely that the ward is present in England or Wales on the relevant date—the date of the new application—and the court considers that the immediate exercise of its powers is necessary for his protection. By this procedural device the court might then make the custody order. But should that be permitted? Whilst this ancient prerogative jurisdiction survives I shall scrupulously and rigorously enforce it where I can. Nevertheless, despite this reluctance to curtail my jurisdiction, I consider that to exercise these powers would be wrong and that I cannot justify what could be a devious entry to the court by the back door where Parliament has so firmly shut the front door to custody orders being made in these circumstances.’

One corollary of this is that, whatever may have been the position before the 1986 Act, the focus nowadays must be on the protective rather than the custodial aspect of the inherent jurisdiction.

[39] The second development is that referred to by Thorpe LJ in Al Habtoor v Fotheringham [2001] 1 FCR 385, [2001] 1 FLR 951, and described by Baroness Hale in A v A, paras [64]–[65] as ‘important general considerations which may militate against’ exercise of the jurisdiction:

‘[64] … It is inconsistent with and potentially disruptive of the modern trend towards habitual residence as the principal basis of jurisdiction; it may encourage conflicting orders in competing jurisdictions; using it to order the child to come here may disrupt the scheme of the 1986 Act by enabling the child’s future to be decided in a country other than that where he or she is habitually resident. In a completely different context, there are also rules of public international law for determining which is the effective nationality where a person holds dual nationality.

[65] All of these are reasons for, as Thorpe LJ put it in Al Habtoor v Fotheringham [2001] 1 FCR 385 at [42], [2001] 1 FLR 951, “extreme circumspection” in deciding to exercise the jurisdiction.’

[40] Reported examples of the exercise of the jurisdiction since 1986 (indeed, since 1965) are few and far between. The only ones of which we are aware are the decisions of Singer J in Re KR (a child) (abduction: forcible removal by parents) [1999] 2 FCR 337, [1999] 4 All ER 954, of Hogg J in Re B, RB v FB (forced marriage: wardship: jurisdiction) [2008] 2 FLR 1624 and, very recently, of the President in Re M (children) (wardship) [2015] EWHC 1433 (Fam), [2016] 2 FCR 280. No doubt there have been other unreported examples, for instance in cases of forced marriage. In the latter case the President said this (para [32]):

‘Recognising that for all the reasons articulated in Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FCR 385, [2001] 1 FLR 951 (para [42]), and, more recently, in Re N and in [A v A], there is need for “extreme circumspection in deciding to exercise the jurisdiction”, I have no doubt that the jurisdiction was properly exercised in both Re KR and Re B, just as I have no doubt that it can properly be exercised in the circumstances with which I am here faced. This is not the occasion, and there is no need for me, to explore the range of circumstances in which it may be appropriate to make a child who is outside the jurisdiction a ward of court. I merely observe that cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world. I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage arts 2 or 3 of the [Convention]—risk to life or risk of degrading or inhuman treatment—is surely unproblematic. So wardship is surely an appropriate remedy, even if the child has already left the jurisdiction, in cases where the fear is that a child has been taken abroad for the purposes of a forced marriage (as in Re KR and Re B) or so that she can be subjected to female genital mutilation or (as here) where the fear is that a child has been taken abroad to travel to a dangerous war zone. There is no need for me to go any further, so I need not consider whether there are other kinds of situation where a child who is already abroad should be made a ward of court or whether wardship is an appropriate remedy where the risk to the child is of harm falling short of harm of the type that would engage arts 2 or 3 of the Convention.’

[41] It was argued on behalf of the appellant that the decision in Al Habtoor v Fotheringham [2001] 1 FCR 385, [2001] 1 FLR 951, marked a ‘significant shift’ in the use of the inherent jurisdiction and that in A v A the jurisdiction was ‘resuscitated’ and freed from the ‘inhibiting effect’ of Al Habtoor v Fotheringham. The argument that the jurisdiction can and should be exercised in the present case was founded on the expansive reading which counsel sought to attribute to what Baroness Hale said in A v A, paras [63], [65]:

‘[63] In my view, there is no doubt that the jurisdiction exists, in so far as it has not been taken away by the provisions of the 1986 Act. The question is whether it is appropriate to exercise it in the particular circumstances of the case …

[65] … all must depend on the circumstances of the particular case. Among the factors which may be relevant in this case are:

(i) The father is now estopped from denying that the three older children are habitually resident here. There is no obstacle to their future being decided in this country, which is undoubtedly the country with which they had the closest connection until they were prevented from leaving Pakistan to return here in November 2009.

(ii) The basis on which the father proposed to mount a forum non conveniens argument in relation to the older children was that the High Court did not have jurisdiction in relation to Haroon. If it is determined that the High Court should exercise its jurisdiction in relation to Haroon, that argument disappears. The father should not be permitted to raise any other arguments in relation to the older children which he could have raised at first instance.

(iii) Nevertheless, arguments as to the appropriate forum in which to decide Haroon’s future will be relevant to whether it would be right for the High Court to exercise its inherent jurisdiction based on nationality in his case.

(iv) Among those arguments will be the practicability of the mother litigating the children’s future in Pakistan, in the light of the findings already made by the judge. How reasonable is it to expect her to return to that country, given what happened to her there previously? Conversely, how reasonable is it to expect the father to return here, where he was born and has lived for most of his life and has property and other family members?

(v) The circumstances in which these children came to be in Pakistan, and the coercion to which their mother was subject, while not determinative, are highly relevant factors.’

[42] We do not read Baroness Hale as intending to overthrow more than 150 years of settled jurisprudence. She said nothing by way of disapproval of any of the phraseology she had quoted in para [62]. On the contrary, in para [65] she expressly adopted Thorpe LJ’s use of the words ‘extreme circumspection’. She expressed no disapproval of the decision in Al Habtoor v Fotheringham [2001] 1 FCR 385, [2001] 1 FLR 951 and, in para [62], expressly endorsed the correctness of the decision in Re N (a child) (abduction: appeal) [2013] 1 FLR 457, [2012] All ER (D) 141 (Jul)—both cases where the jurisdiction was invoked unsuccessfully despite the difficulties the applicant mother would have had in litigating in the foreign court, Dubai in the one case, Lebanon in the other. Moreover, Baroness Hale explicitly recognised, in para [63], the effect of the 1986 Act in taking away part of the jurisdiction and, in para [64], the significance of the ‘the modern trend towards habitual residence as the principal basis of jurisdiction’.

[43] In these circumstances, Baroness Hale’s use, in paras [63] and [65], of the phrases ‘the particular circumstances of the case’ and ‘the circumstances of the particular case’ simply do not bear the weight which counsel seek to attribute to them. Of course, one has to focus on the particular circumstances of the particular case, but that does not mean that the court can make an order whenever it thinks it might be appropriate. The point is illustrated by what Sachs J said in Harben v Harben [1957] 1 All ER 379 at 381, [1957] 1 WLR 261 at 265:

‘Whether or not this court makes an order in relation to a child outside the jurisdiction depends on the particular facts of the case, but, of course, those facts have to be really exceptional before an order is made.’

[44] Nor, in our judgment, does an analysis of the particular features identified by Baroness Hale in A v A, para [65], assist the appellant in this case. A v A was remitted for hearing by Parker J, who described the circumstances of the case as being ‘if not unique, certainly of a very special nature’: A v A (return order on the basis of British nationality) [2013] EWHC 3298 (Fam), [2014] 2 FLR 244, [2013] All ER (D) 148 (Nov) at [13]. Nothing said, whether by Baroness Hale or by Parker J, supports the view that the decision in A v A turned on questions of forum (non) conveniens alone. The two driving considerations seem to have been, first, the fact that the English court undoubtedly had jurisdiction in relation to the three older children and, secondly, the father’s coercion of the mother. Parker J put the point very clearly (paras [15], [17]):

‘[15] … The only reason … why H remains [in Pakistan] is because of coercive measures by the father.

…

[17] It is obvious that the three eldest children’s future should be litigated here … H is one of a sibling group of four. Their futures should be decided together.’

In the present case, in contrast, we are concerned with a single child of whom, as already noted, the respondent was the sole person with parental responsibility and whose removal of the child to Pakistan was not wrongful.

[45] In our judgment, the use of the inherent jurisdiction in cases where the child is outside the jurisdiction remains subject to the long-established and consistent jurisprudence. Various words have been used down the years to describe the kind of circumstances in which it may be appropriate to make an order—‘only under extraordinary circumstances’, ‘the rarest possible thing’, ‘very unusual’, ‘really exceptional’, ‘dire and exceptional’, ‘at the very extreme end of the spectrum’. The jurisdiction, it has been said, must be exercised ‘sparingly’, with ‘great caution’ (the phrase used by Lord Hughes in A v A, para [70](v)) and with ‘extreme circumspection’. We quote these words not because they or any of them are definitive—they are not—but because, taken together, they indicate very clearly just how limited the occasions will be when there can properly be recourse to the jurisdiction.

[46] Moreover, and as we have already explained, those occasions will in modern times be even more limited than previously, given, first, the effect of the 1986 Act and, secondly, the other recent developments noted by Thorpe LJ and Baroness Hale. The importance of the 1986 Act in limiting recourse to the inherent jurisdiction is plain. In our judgment, the analysis of Ward J in Re E (child abduction), sub nom F v S (wardship: jurisdiction) [1991] FCR 631, [1991] 2 FLR 349, and his warning against using a return order as an artificial device to found jurisdiction, are as valid now as then, and remain unaffected by anything said in A v A.

[47] In the present case, the essential dispute between the parties relates to the appellant’s claim for contact and, in our judgment, Hogg J was entirely accurate in her description of this as being (para [36]) ‘At heart … a contact application’. On the face of it, therefore, notwithstanding the application for a return order, the appellant’s attempt to invoke the inherent jurisdiction founders on s 1(1)(d)(i) of the 1986 Act and involves an impermissible attempt, using Ward J’s expressive phrase, to make ‘a devious entry to the court by the back door’.

[48] The appellant seeks to escape from this conclusion by pointing to what she says is the fact that there would be ‘no opportunity’ for either party to litigate in the courts of Pakistan, in particular ‘given the risks to all involved of the disclosure of the sexuality of the appellant and the respondent and P’s origins’. After the President pointed out that there was no expert evidence in support of a proposition which was based on little more than her bare assertion, the appellant filed a further skeleton argument referring to the June 2014 report of the International Gay and Lesbian Human Rights Commission, Experience of Lesbian and Bisexual Women in Asia: Pakistan. Even then, there was no reference to any of the objective country materials whose forensic deployment in the Administrative Court is routine in immigration and asylum cases but which, for reasons we have never been able to understand, are rarely deployed, as they should be, in the Family Division. We have in mind, in particular, the country reports regularly issued by the Home Office, the United States Department of State, Amnesty International and Human Rights Watch.

[49] After we pointed this out we were provided with extracts from four further documents: the UK Border Agency’s January 2013 Operational Guidance Note: Pakistan, the Home Office’s July 2014 Country Information and Guidance—Pakistan: Sexual orientation and gender identity, the State Department’s Pakistan 2013 Human Rights Report, and a paper by Shafi’i Abdul Azeez Bello The Punishment of Homosexuality in Islamic Contemporary World [Malaysia, Iran, Pakistan and Saudi Arabia as a case study].

[50] The material provided does not justify us in reaching any firm conclusions about what, if anything, the law of Pakistan has to say about lesbianism or what the stance of the courts of Pakistan is in cases involving lesbianism. Section 377 of the Pakistan Penal Code, which dates back to 1860 and plainly reflects the then English criminal law, penalises ‘carnal intercourse against the order of nature with any man, woman or animal’ and explains that ‘Penetration is sufficient to constitute the carnal intercourse necessary to the offence’. It would appear unlikely that this provision would itself render unlawful sexual acts between two women. It seems that the issue of sexual relations between women is very unexplored territory in Pakistani law and has not been tested in the courts: see the Home Office’s July 2014 Country Information and Guidance, para 2.2.7, and the International Gay and Lesbian Human Rights Commission’s report, p 19.

[51] Having said that, the material does establish that there is widespread, indeed pervasive, societal and state discrimination, social stigma, harassment and violence against both gay men and lesbian women in Pakistan, together with a lack of effective protection by the state from the activities of non-state actors. The official view in Pakistan appears to be that same-sex relationships involve ‘abnormal sexual behaviour’; materials we have seen suggest that lesbians are ‘invisible’ in Pakistani society: see the Home Office’s July 2014 Country Information and Guidance, paras 2.3.3, 2.4.5.

[52] Overall, unsatisfactorily general though the evidence is, we are prepared to proceed on the basis that it is very unlikely that the courts in Pakistan would be prepared to recognise the appellant as having any relationship with P that would entitle her to relief. She could hardly hope to demonstrate the necessary kind of parental, or in any event familial, relationship with P unless she were tolerably frank about the nature of her relationship with the respondent. But in that case, even if the court evinced no actual hostility to the appellant, the evidence about societal attitudes strongly suggests that her consequent relationship with P would not be recognised as one which justified any legal protection. Thus, while we need reach no conclusion about the alleged ‘risks to all concerned’, what matters is that the appellant will have no realistic opportunity to advance her claim in the Pakistani courts.

[53] However, in our judgment that state of affairs is not by itself enough to justify the intervention of the English court. The fact that local judicial processes are, to our perception, inadequate does not in any way lessen the difficulties about seeking to invoke the inherent jurisdiction when a child is abroad. As a matter of principle, such a claim to jurisdiction sits most uncomfortably not merely with the long-established jurisprudence but more particularly with the provisions of s 1(1)(d)(i) of the 1986 Act and the decisions in Al Habtoor v Fotheringham [2001] 1 FCR 385, [2001] 1 FLR 951, and Re N (a child) (abduction: appeal) [2012] EWCA Civ 1086, [2013] 1 FLR 457, [2012] All ER (D) 141 (Jul). We would not wish to lay down any rigid boundaries for the exercise of the jurisdiction; all must depend, as always, on the circumstances of the particular case. However, we are satisfied that the present case does not approach the very high threshold necessary to justify the exercise of the jurisdiction. We are very willing to accept that the attenuation or even—if this is, regrettably, what happens—the ultimate loss of her relationship with the appellant will be a real detriment to P, quite apart from being a great grief to the appellant herself. But it has to be recognised that the respondent has always been P’s primary carer, that the appellant had not been part of the household for some time before P and the respondent left for Pakistan and that the appellant has never even in this country had any legal parental rights. The situation falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction.

[54] Even taking account of this aspect of the case, therefore, the circumstances, in our judgment, are simply not such as to justify the exercise of the inherent jurisdiction, having regard to what we have said in para [45], above. It follows that Hogg J was entirely justified in refusing to exercise it. The appeal on this point accordingly fails.

[55] Although this has not formed part of our reasoning in dismissing the appeal on this point, we should add that there is an inherent difficulty in such a case which may in any event rule out recourse to the inherent jurisdiction, assuming, as here, that both the parent and child are in the foreign jurisdiction and unwilling to return. If the foreign jurisdiction is such as to deny any effective remedy to someone in the appellant’s position, what reason can there be to think that it will be willing to enforce an order obtained from the English court? At the very point at which the inadequacy of the foreign court might be such as to persuade the English court to assume jurisdiction, the English court would surely be inclined to decline to exercise it on the basis of anticipated futility.

[56] We acknowledge the principle, articulated by Romer LJ in Re Liddell’s Settlement Trusts [1936] Ch 365 at 374 that ‘It is not the habit of this Court in considering whether or not it will make an order to contemplate the possibility that it will not be obeyed’ (see also [1936] 1 All ER 239 at 248). On the other hand, as Kerr LJ put it in Hamlin v Hamlin [1985] 2 All ER 1037 at 1041, [1986] Fam 11 at 18, ‘our courts will not make orders which they cannot enforce’. These are matters which the President considered in Re J (a child) (contra mundum injunction), sub nom Re J (reporting restriction: internet: video) [2013] EWHC 2694 (Fam), [2014] 2 FCR 284, [2014] 1 FLR 523 at [60]–[64]. As in that case, so here, we do not think there is any need for us to come to a concluded view on a point which does not in fact arise for decision and which, if it had to be decided, would call for fuller argument than was appropriate here. We merely note, as the President did, that in Wookey v Wookey, Re S (a minor) (injunction) [1991] FCR 811 at 815, [1991] Fam 121 at 131, Butler-Sloss LJ said that ‘there must be a real possibility that the order, if made, will be enforceable’, while in Dadourian Group International Inc v Simms [2006] EWCA Civ 399, [2006] 3 All ER 48, [2006] 1 WLR 2499 at [35], Arden LJ said that ‘the foreign court must be astute to see that there is a real prospect that something will be gained’. And we are inclined to agree with the President’s view ([2014] 2 FCR 284, [2014] 1 FLR 523 at [63]) that in such cases the court will need evidence as to the applicable law and practice in the foreign court, in particular, evidence as to whether the foreign court would be likely to enforce the order.

[57] Before parting from the inherent jurisdiction we add this. We agree with the President that both Re KR (a child) (abduction: forcible removal by parents) [1999] 2 FCR 337, [1999] 4 All ER 954 and Re B, RB v FB (forced marriage: wardship: jurisdiction) [2008] 2 FLR 1624, were correctly decided, as was also the case recently before the President, Re M (children) [2016] 2 FCR 280. And, for the avoidance of misunderstanding, we make clear that nothing we have said is intended to throw any doubt on the President’s identification of wardship as an appropriate remedy, even if the child has already left the jurisdiction, in cases where the fear is that a child has been taken abroad for the purposes of a forced marriage or so that she can be subjected to female genital mutilation or to travel to a dangerous war zone. These are all, in principle, situations in which recourse can properly be had to the inherent jurisdiction in its protective, rather than its custodial, aspect and without falling foul of the 1986 Act. Of course, whether the inherent jurisdiction should actually be exercised in such a case will depend upon the particular circumstances of the particular case.

Conclusion

[58] For the reasons set out above, the appeal is dismissed. We express the hope that the respondent will recognise the value to P of her maintaining her relationship with the appellant and will not only permit but encourage continuing contact between them.

Appeal dismissed.

Appeal

The applicant, the same-sex partner of B’s mother, appealed from a decision of the Court of Appeal (Sir James Munby P, Black and Underhill LJJ) on 6 August 2015 ([2015] EWCA Civ 886, [2016] 2 FCR 307) dismissing her appeal from the decision of Hogg J on 31 July 2014 ([2014] EWHC 3017 (Fam)), dismissing her applications for shared residence or contact orders under the Children Act 1989, and her applications under the inherent jurisdiction of the High Court for orders for B to be made a ward of court and be returned to England. The facts are set out in the judgment of Lord Wilson SCJ.

David Williams QC, Alistair Perkins, Michael Gration andMehvish Chaudhry (instructed by Freemans Solicitors) for the appellant.

William Tyler QC, Hannah Markham and Miriam Carrion Benitez (instructed by Goodman Ray Solicitors) for the respondent.

Richard Harrison QC, Madeleine Reardon and Jennifer Perrins (instructed by Farrer & Co LLP) for the intervener (Reunite).

Henry Setright QC, Hassan Khan, Dorothea Gartland and Katy Chokowry (instructed by Dawson Cornwell) for the intervener (The International Centre for Family Law Policy and Practice).

Deirdre Fottrell QC, Michael Edwards (instructed by Bindmans LLP) for the intervener (The AIRE Centre).

3 February 2016. The following judgments were delivered.

SC

LORD WILSON SCJ

(with whom Baroness Hale and Lord Toulson agree).

Introduction

[1] It has been hard-wired into the mind of many family lawyers in England and Wales that, were a parent to remove a child from a state in which they were habitually resident to another state with the settled intention that they would cease to reside in that first state and make their home in that second state, the child would be likely to lose habitual residence in the first state immediately upon the removal and, until later acquiring habitual residence in the second state, would be likely not to be habitually resident anywhere. The absence of habitual residence anywhere places a child in a legal limbo. The main question raised by this appeal, which arguably the lower courts were not free to answer, is whether the expectation of family lawyers about the point at which habitual residence is lost requires adjustment in the light of this court’s recent adoption of the European concept of habitual residence. The court’s answer to this question should enable it to determine whether the lower courts were correct to conclude that, on the relevant date, the child at the centre of this appeal was in the limbo to which I have referred.

[2] The child is B, a girl, who was born in April 2008 and so is now aged seven. The women who are the two central parties to this appeal were living in England in a same-sex relationship from 2004 to 2011. Other than biologically, B is the product of their relationship. The respondent is the biological mother of B and her father is an unknown sperm donor of Asian ethnicity. The appellant has strong claims also to be described as a mother. Nevertheless, in order to avoid confusion, it is better to refer to the central parties as the appellant and the respondent respectively.

[3] The appellant, who continues to live in England, is a British national, aged 35, of Indian ethnicity. The respondent is a British national, aged 45, of Pakistani ethnicity. B, likewise, is a British national. On 3 February 2014 the respondent took B to live in Pakistan, where they have remained ever since. On 13 February 2014, aware that the respondent had removed B from her home but unaware that she had taken her abroad, the appellant issued an application under the Children Act 1989 for leave to apply for what were then still described as orders for shared residence of B or for contact with her. On 6 June 2014, having learnt that the respondent had taken her to Pakistan, the appellant also applied for orders that B should be made a ward of court and be returned to England. On 31 July 2014 Hogg J dismissed both of the appellant’s applications: [2014] EWHC 3017 (Fam). And on 6 August 2015 the Court of Appeal (Sir James Munby P, Black and Underhill LJJ), by a judgment of the court delivered by Black LJ, dismissed her appeal: [2015] EWCA Civ 886, [2016] 2 FCR 307, [2016] AC 606.

Facts

[4] In 2000, prior to her relationship with the appellant, the respondent had begun to investigate the possibility of her conceiving a child by artificial means and in 2001 she had made unsuccessful attempts to do so. In 2004 their relationship began and they set up home together; but they never entered into a civil partnership. In 2005 and 2006, as a couple, they together explored that same possibility. At their joint request, a licensed hospital administered two cycles of intrauterine insemination (‘IUI’) to the respondent but the treatment was unsuccessful. Then they made a joint application to their local authority for assessment as potential adopters. Six months later, however, at the instigation of the appellant, who did not feel ready to be a parent, they withdrew their candidacy. Ultimately, in April 2007, they applied to another licensed hospital for the respondent to have further IUI treatment under the National Health Service. ‘I see no reason’, wrote the counsellor, ‘why this couple should not be treated’. On this occasion the treatment was successful and in April 2008 B was born.

[5] Shortly prior to B’s birth the appellant and the respondent had bought a house in their joint names. They lived there together with B until December 2011, when in acrimonious circumstances their relationship finally broke down and the appellant left.

[6] Upon B’s birth the respondent gave up work for a year. The appellant took two weeks of ‘paternity leave’ and a further two weeks of holiday, whereupon she resumed full-time employment. Most of B’s care was undertaken by the respondent but, when she got home, the appellant helped to care for her, for example to give her a bath and put her to bed; and at weekends, as co-parents, they took B out, in particular to visit members of their families. Living within easy reach of them were the appellant’s parents, the respondent’s parents and her two sisters, together with various young cousins of B. She became close to these relations, who all remain resident in England today. When in 2009 the respondent resumed work, the appellant’s parents looked after B for two days each week but, when she began to attend a nursery, their care of her was reduced to one day each week. When she began to talk, B began to call the respondent ‘mama’ and the appellant ‘mimi’. On behalf of B, the respondent wrote Mother’s Day cards to the appellant; on one of them she wrote ‘I can’t believe how lucky I am to have you as my Mama’.

[7] Following her departure from the family home, the appellant continued to pay half the mortgage instalments referable to it and to make other payments which she describes as for B’s maintenance and which the respondent describes as her continuing contribution to utility bills. The respondent accuses the appellant of withdrawing from many aspects of parenting, for example in relation to B’s schooling; but on any view the appellant pressed for contact with B and on any view the respondent was to some extent resistant to it. Over the following two years the respondent progressively reduced the level of the appellant’s contact with B—from six hours every week in the first few months, to three hours every fortnight in the following year and then to only two hours every three weeks in the year prior to the move to Pakistan.

[8] The appellant was not content with the reduction in her contact with B, nor with the ostensible difficulties placed by the respondent in the way of her seeing B on a number of the pre-arranged days. Bad-tempered e-mails passed between them. By November 2012 the appellant was inviting the respondent, albeit unsuccessfully, to join her at family mediation. Then, in October 2013, the appellant wrote to the respondent a letter before action. She expressed concern about the effect on B’s emotional wellbeing of the minimal contact which the respondent had allowed to take place between them and she invited her to consent to a shared residence order, pursuant to which B would stay with the appellant on three nights each fortnight and for further periods during school holidays. The respondent does not appear to have replied to the letter.

[9] Meanwhile the respondent had begun privately to consider whether to take B to live in Pakistan, where, according to her, certain unidentified members of her wider family remain. In June 2013 she had been made redundant and life had become particularly difficult for her. In November 2013 she went alone to Islamabad and there she discussed with a friend the possibility of entry into a business partnership with him and looked at a possible school for B. In December 2013, following her return to England, the respondent secretly decided to move there with B as soon as possible.

[10] Also in December 2013 the respondent took B on holiday to Morocco. On the first occasion of contact following their return B handed a Moroccan card to the appellant. On the card B had written ‘To mimi I missed you so much love [B]’ and she had drawn hearts and kisses.

[11] At around that time the respondent at last agreed to attend a mediation session with the appellant. It took place on 15 January 2014. The respondent made no mention of her imminent departure with B to Pakistan and it is hard to avoid the conclusion that the session was a charade. It was agreed that the next session would take place on 5 February 2014.

[12] The last occasion of direct contact between the appellant and B took place on 26 January 2014. According to the appellant, B told her that she was moving and that she was scared that the appellant would not be able to find her.

[13] The next occasion of contact was fixed to take place three weeks later, namely on 16 February 2014. Late in January, by e-mail, the appellant asked the respondent to agree to change the date. There was no reply. On 7 February the appellant sent a further e-mail. It bounced back. The appellant discovered that the respondent’s facebook and twitter pages had been closed. Then, on 8 February, the appellant received a letter from the respondent. It had been posted by someone in England on 6 February. In it the respondent gave no indication of the whereabouts of herself and B. She wrote ‘I’ve enclosed the house key as I have now moved … our communication has been so strained and stressful … I will be in touch in a few weeks, once we settle, to establish what you have decided to do about the house’.

[14] The respondent’s removal of B to Pakistan on 3 February 2014 was lawful. The absence of the appellant’s consent did not vitiate it. The appellant has never been B’s legal parent. Had the insemination which led to B’s conception occurred after 6 April 2009, and had the respondent so agreed in writing, the appellant would have been treated in law as B’s parent: ss 43 and 44 of the Human Fertilisation and Embryology Act 2008. Had she thereupon been registered as a parent, the appellant would also have acquired parental responsibility for B: s 4ZA(1)(a) of the 1989 Act. Alternatively, if the appellant had secured a shared residence order referable to B prior to 3 February 2014, she would have acquired parental responsibility for her under the former version of s 12(2) of the 1989 Act. In the event, however, she never had parental responsibility for B.

[15] Later the respondent was to give the following evidence, which Hogg J accepted, about the circumstances of herself and B in Pakistan in the weeks following their arrival on 4 February 2014:

(a) she arrived in Islamabad on a visa which entitled her to remain with B in Pakistan for about three months;

(b) she stayed with B in the home of her potential business partner for about the first three weeks;

(c) on 10 February she began working in partnership with him;

(d) on 18 February she registered B at an English-speaking school (being other than the one which she had previously considered), at which on the following day B began to attend;

(e) on 19 February she entered into an agreement to rent a two bedroom flat for one year with effect from 1 March;

(f) on (presumably) 1 March she moved with B into the flat; and

(g) on 18 April she was issued with a National Identity Card which entitled her to reside with B in Pakistan indefinitely.

[16] On 24 July 2014, five days before the beginning of the hearing before Hogg J, the appellant spoke to B by telephone. Since then there have been five further occasions of contact by telephone. No other contact has taken place between them since the move to Pakistan.

Proceedings

[17] When on 13 February 2014 the appellant issued her application under the 1989 Act, she remained unaware of B’s whereabouts so she also issued an application under s 33 of the Family Law Act 1986 for orders that specified public authorities should disclose to the court all their information relating to B’s whereabouts. An order was made against the Child Benefit Office but it yielded no relevant information. In April 2014, still unaware of the whereabouts of the respondent and B, the appellant secured an order for substituted service of her applications upon the respondent, namely by post to the address of her parents. The respondent says that in his mind her father had somehow been able to avoid directly confronting her sexuality, her intimate relationship with the appellant and the circumstances of B’s conception; and that, when he opened the envelope, he was deeply shocked and angry about what he perceived to be the respondent’s dishonour of the family. There may well be grounds for criticising the appellant for having invited the court to order that the substituted service should be at the parents’ address as opposed, for example, at the address of one of the respondent’s sisters. At all events the service led to the respondent’s instruction of English solicitors who, on 9 May 2014, informed the appellant’s solicitors that the respondent and B had gone to Pakistan. Later the respondent divulged that she and B were in Islamabad but, for reasons unexplained to the court, she has never disclosed their precise address there.

[18] The appellant’s belated discovery that B was abroad led her, on 6 June 2014, to issue a further application, namely for orders to be made by the High Court in the exercise of its inherent jurisdiction over B, as a British subject, that she be made a ward of court and be at once brought back to England. On 9 June 2014, apprised of the fact that the respondent disputed the court’s jurisdiction to make any of the orders sought by the appellant, Moylan J directed that the issue of jurisdiction be determined at a hearing beginning on 29 July 2014 and he ordered that the respondent should attend it in person. By a recital to his order, Moylan J also invited the respondent to reflect upon the practical availability of any forum, other than in England and Wales, in which she and the appellant might safely and realistically resolve their disputes. In due course, having presumably reflected upon it, the respondent averred that the correct jurisdiction in which to raise any issues in relation to B was that of Pakistan.

[19] Four days before the hearing fixed to begin on 29 July 2014, Peter Jackson J heard an application by the respondent to vary the order that she should attend it in person. She asserted that her father had been so outraged by what he had learnt from the court documents as to have threatened to break her legs and that, were she to come to England, she would be at risk of physical harm, perhaps even of death, at his hands or at those of the local community. Instead the respondent offered to give evidence at the substantive hearing by video-link. On the undertaking of the appellant not to inform the respondent’s family that the hearing was about to take place, the judge refused the respondent’s application and made a further order for her attendance in person. Nevertheless the respondent refused to comply with the orders for her attendance before Hogg J in person. She did not even give evidence to her by video-link. She gave evidence only by telephone.

[20] On 31 July 2014, following receipt of evidence relevant to jurisdiction from the appellant in the witness box as well as from the respondent by telephone, Hogg J gave judgment. It was, as she noted, common ground that prior to 3 February 2014 the respondent and B had been habitually resident in England. Notwithstanding her inability to have observed the respondent during cross-examination about her motives, Hogg J found that, when departing for Pakistan on that date, the respondent had genuinely intended to make a new life for herself and for B there and that her motivation had not been to evade the appellant’s increasing demands to be allowed to play a fuller role in B’s life. So she held that the respondent had thereupon lost her own habitual residence in England. She accepted that the appellant had been a significant person in B’s life, particularly prior to the breakdown of the relationship between the two women; that the appellant still had much to offer B; and that B had said that she would miss the appellant and had wished to remain in touch with her. But, asked Hogg J, was B’s wish to remain in touch with the appellant enough to sustain a continuation of her habitual residence in England? Her answer was no. Accordingly she held that B had also lost her English habitual residence on 3 February 2014 and thus that the court had no jurisdiction to determine the application issued by the appellant on 13 February 2014 pursuant to the 1989 Act. It was nevertheless probable, observed the judge, that neither the respondent nor B had acquired habitual residence in Pakistan by that date.

[21] Then Hogg J addressed the appellant’s application for the exercise of her inherent jurisdiction over B as a British subject. She noted the appellant’s central contention that, in the light of society’s attitude in Pakistan towards homosexual acts, she would not be able even to present her case, as a same-sex parent, to the courts there; and the appellant’s wider contentions that, as a lesbian, the respondent was putting herself and B at risk by living in Pakistan and that, while B needed in due course to develop a fuller understanding of the circumstances of her conception and early home life, she would, were the respondent to have told her the truth about them, put herself at risk even by speaking about them in Pakistan. The judge, however, accepted that the respondent was well aware of the difficulties which would attend her entry into a same-sex relationship in Pakistan. The judge held that the jurisdiction over a British subject who was neither habitually resident nor present in England and Wales should be exercised only if the circumstances of the case were ‘dire and exceptional’ and that those of the present case did not so qualify.

[22] ‘This case before me’, concluded Hogg J, ‘is at heart one of “contact” in the old-fashioned terminology and about making arrangements for seeing a significant person in [B’s] life’. Then she observed that, had the respondent made an application for permission to remove B to Pakistan, it would have stood a very good chance of success and that there would have been plans, if not orders, for the appellant to have indirect contact. With respect to Hogg J, others might attribute a somewhat lower chance of success to the respondent’s hypothetical application; and counsel have been unable satisfactorily to explain the judge’s apparent suggestion that the extent of B’s contact with the appellant for which the court would have provided would have been no more than indirect.

[23] In the appellant’s appeal to the Court of Appeal against the orders of Hogg J the Reunite International Child Abduction Centre (‘Reunite’) was permitted to intervene. By its judgment, the court concluded that Hogg J had been entitled to hold that on 3 February 2014 B had lost her English habitual residence. It also concluded that, although the attenuation, or even the ultimate loss, of her relationship with the appellant would be a real detriment to B, the circumstances were not so exceptionally grave as to justify exercise of the inherent jurisdiction by reference to her nationality.

[24] The Court of Appeal correctly observed that there was no direct evidence to substantiate the appellant’s asserted inability to present her case to the courts of Pakistan. But it surveyed a mass of general material about the attitude of society in Pakistan to same-sex relationships and concluded from it that, although the issue of sexual relations between women was unexplored territory in law, there was in Pakistan pervasive societal and state discrimination, social stigma, harassment and violence against both gay men and lesbian women, together with a lack of effective protection by the state against the activities of non-state actors. So the Court of Appeal proceeded on the basis—not challenged by the respondent in the course of this further appeal—that courts in Pakistan would be unlikely to recognise that the appellant had any relationship with B which would entitle her to relief and that therefore she would have no realistic opportunity to advance her claim there.

Consequence

[25] The consequence of the conclusions reached in the lower courts, in both of them by judges of great experience in the field of family law, is that applications intended to secure for B a continuing relationship with the woman who, with the respondent’s consent, has acted as one of her parents and who, even for the two years following the separation, managed to maintain a significant, loving presence in her life have been dismissed without any appraisal of B’s welfare; without any knowledge of her current situation; without any collection of her wishes and feelings; and in circumstances in which no such applications can be entertained in any other court.

[26] Is it correct that, by the clandestine removal of her to Pakistan, the respondent has placed B’s interests beyond all judicial oversight? The Court of Appeal’s affirmative answer is arresting. It demands this court’s close scrutiny.

Habitual residence

(a) Principle

[27] A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her). Article 8 of Council Regulation 2201/2003/EC (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation 1347/2000/EC) (OJ 2003 L338 p 1) (‘Regulation B2R’) provides that the courts of an EU state shall have jurisdiction in matters of parental responsibility over a child habitually resident there at the time when the court is seised. By way of exception, art 12 confers jurisdiction on a state which has other links with the child but only where the parties have accepted its jurisdiction. Article 13 provides that, where a child’s habitual residence cannot be established (which means where the child is not habitually resident in any EU state) and where art 12 does not apply, jurisdiction vests in the courts of the state in which the child is present. Article 14, entitled ‘Residual jurisdiction’ provides that, where no court of a member state has jurisdiction under the preceding articles, jurisdiction shall be determined by the laws of each state.

[28] A child’s habitual residence is also the thread which unites the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (‘the 1980 Convention’). This Convention applies to a child habitually resident in a contracting state immediately before his wrongful removal or retention: art 4. It is the law of that state which dictates whether his removal or retention was wrongful: art 3(a). It is that state to which, subject to exceptions, other contracting states must order the child to be returned: art 12. Under the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996, concluded on 19 October 1996 (Cm 7727) it is, again, the courts of the contracting state of the child’s habitual residence which, as against other contracting states, has jurisdiction to make orders for his protection: art 5(1).

[29] Regulation B2R extends beyond the identification of jurisdiction as between EU states themselves. It binds each EU state irrespective of whether the other state with potential jurisdiction is an EU state. Thus the Family Law Act 1986 now provides, by s 2(1)(a), that an order under s 8 of the 1989 Act may be made only if the court has jurisdiction under Regulation B2R or if other conditions, irrelevant for present purposes, are satisfied. By her application issued on 13 February 2014 the appellant applied for leave to apply for orders under s 8 of the 1989 Act and the result is that the court has jurisdiction to determine her application only if B was habitually resident in England and Wales on the date of its issue.

[30] Two consequences flow from the modern international primacy of the concept of a child’s habitual residence. The first is that, as Reunite submits to this court and as the respondent broadly accepts, it is not in the interests of children routinely to be left without a habitual residence. In that event the machinery of international instruments designed to achieve an orderly resolution of issues relating to them does not operate as primarily intended. Indeed, if they are unilaterally removed from a state in which they were not habitually resident, those aggrieved by their removal can have no recourse to the 1980 Convention. In Re AF (a minor) (abduction) [1992] 1 FCR 269 at 277, [1992] 1 FLR 548 at 555, Butler-Sloss LJ accepted that for that reason it was important that, where possible, a child should have an habitual residence. Indeed, in his article entitled ‘The Concept of Habitual Residence’ (1997) Juridical Review 137, Dr Clive, the great Scottish family law jurist, wrote at p 143 that ‘with the increasing importance of habitual residence as a connecting factor, it is not sensible to have a situation in which people are routinely without a habitual residence’. In the absence of the habitual residence of children anywhere, Regulation B2R provides a fall-back jurisdiction based on their presence. But, in the context of adult disputes about them, the presence of children in a particular state on a particular day is an unsatisfactory foundation of jurisdiction because, by moving them from one state to another, one of the adults can so easily invoke a favourable jurisdiction or pre-empt invocation of an unfavourable one.

[31] The second consequence is that the interpretation in the courts of England and Wales of the concept of habitual residence should be consonant with its international interpretation: see the judgment of the Court of Justice of the European Union (‘the CJEU’) in Proceedings brought by A (Case C‐523/07) [2010] Fam 42, [2009] ECR I-2805 (para 34). Its traditional interpretation in England and Wales has been substantially influenced by the stance adopted by one or both of the parents, often at the expense of focus on the child’s own situation. By way of example, our courts had accepted a proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility: Re KM (a minor) (habitual residence) [1996] 2 FCR 333 at 339 and 343, [1996] 1 FLR 887 at 892 and 896. This court has now held that proposition to be wrong: AR v RN (children) (wrongful retention: habitual residence), sub nom Re R (Children) (Reunite International Child Abduction Centre intervening) (‘R v R’) [2015] UKSC 35, [2015] 2 FCR 570, [2015] 3 All ER 749. By way of another example, our old law largely proceeded by reference to a proposition that a child’s habitual residence would necessarily follow the habitual residence of the parent with whom he lived: see the discussion of it in Re LC (children) (abduction: habitual residence: state of mind of child) [2014] UKSC 1, [2014] 1 FCR 491, [2014] 1 All ER 1181 at [33]. But it was held in the LC case, at paras [34] to [37], that the international interpretation of habitual residence required that proposition to be relaxed.

[32] The present case requires the court to turn its attention to a third aspect of the concept of a child’s habitual residence, namely the circumstances in which he loses it, and to ask itself whether the longstanding domestic analysis of those circumstances, yet again heavily dependent on parental intention, is consonant with the modern international concept.

[33] The domestic analysis to which I have referred is to be found in the decision of the House of Lords in Re J (a minor) (abduction: custody rights [1991] FCR 129, [1990] 2 All ER 961. The facts have some similarities with those of the present case although the latter has features which may more strongly militate against any immediate loss of the child’s habitual residence upon removal. On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia but who, not having been married to the mother, had at that time no rights of custody in relation to the child. So the mother’s removal of him was not wrongful within the meaning of the 1980 Convention. On 12 April 1990, however, an Australian judge conferred rights of custody on the father. So was the mother’s retention of the child in England after that date wrongful within the meaning of the 1980 Convention? It was wrongful only if the child had continued to be habitually resident in Australia on that date. The appellate committee held that, while he had not by then acquired habitual residence in England, he had lost his habitual residence in Australia upon his removal three weeks earlier.

[34] It is well known that, in giving the only substantive speech in the J case, Lord Brandon of Oakbrook made four preliminary points ([1991] FCR 129 at 140–141, [1990] 2 All ER 961 at 965). The first was that the expression ‘habitual residence’ should be given its natural meaning. The second was that an issue about a person’s habitual residence in a particular country was one of fact. The fourth, which may remain correct notwithstanding the decision in the LC case, was that the habitual residence of a child aged only two who was in the sole lawful custody of his mother would be the same as hers. It is the validity of Lord Brandon’s third point, for which he cited no authority, that is central to the present appeal. Hogg J quoted it in full. Lord Brandon said:

‘The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.’

In the light of his third and fourth points Lord Brandon concluded as follows:

‘The mother had left Western Australia with a settled intention that neither she nor J should continue to be habitually resident there. It follows that immediately before 22 March 1990, when the retention of J in England by the mother began, both she and J had ceased to be habitually resident in Western Australia.’ (Emphasis supplied.)

[35] The analysis by the CJEU of the concept of a child’s habitual residence is located in its judgments in Proceedings brought by A, cited in para [31], above, and in Mercredi v Chaffe (Case C‐497/10 PPU) [2012] Fam 22, [2011] 3 WLR 1229.

[36] In Proceedings brought by A the issue for determination in Finland was whether children taken into care in November 2005 had then been habitually resident there. They had lived with their mother in Sweden for four years until the summer of 2005, when they had returned to Finland, where they had lived on campsites and not been sent to school. The court’s ruling was as follows:

‘2. The concept of “habitual residence” under article 8(1) of [Regulation B2R] must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.’

The court had also suggested, at para 40, that the intention of the parents to settle permanently with the child in another member state, manifested by certain tangible steps such as the purchase or lease of a residence there, might indicate what, perhaps significantly, the court chose to describe as a ‘transfer’ of habitual residence.

[37] In the Mercredi case the issue for determination in England and Wales was whether a baby aged two months, lawfully removed by the French mother from the UK to La Réunion, remained habitually resident here five days later when the English court became seised of the British father’s application. The CJEU carefully followed its ruling in Proceedings brought by A but, by reference to the different facts, chose also to stress, at paras 53 and 56, that the analysis of the social and family environment of a pre-school child would differ from that of a school-age child and would include consideration of the geographic and family origins of the parent who had effected the move and of the family and social connections of that parent and the child with the state to which they had moved.

[38] In Re A (children) (jurisdiction: return of child) sub nom Re A v A (children: habitual residence) (Reunite International Child Abduction Centre intervening) (‘A v A’) [2013] UKSC 60, [2013] 3 FCR 559, [2014] 1 All ER 827, this court held that the criterion articulated in the two European authorities (some degree of integration by the child in a social and family environment), together with the non-exhaustive identification of considerations there held to be relevant to it, governed the concept of habitual residence in the law of England and Wales: para [54](iii) and (v) of Baroness Hale DP’s judgment, with which all the members of the court (including Lord Hughes at para [81]) agreed. Baroness Hale said at (v) that the European approach was preferable to the earlier English approach because it was ‘focused on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors’.

[39] It is worthwhile to note that the new criterion requires not the child’s full integration in the environment of the new state but only a degree of it. It is clear that in certain circumstances the requisite degree of integration can occur quickly. For example art 9 of Regulation B2R, the detail of which is irrelevant, expressly envisages a child’s acquisition of a fresh habitual residence within three months of his move. In the J case, cited above, Lord Brandon suggested that the passage of an ‘appreciable’ period of the time was required before a fresh habitual residence could be acquired. In Marinos v Marinos [2007] EWHC 2047 (Fam), [2008] 2 FCR 47, [2007] 2 FLR 1018 at [31], Munby J doubted whether Lord Brandon’s suggestion was consonant with the modern European law; and it must now be regarded as too absolute. In A v A, cited above, at para [44], Baroness Hale declined to accept that it was impossible to become habitually resident in a single day.

[40] But do the two European authorities assist in identifying the object of central relevance to this appeal, namely the point at which habitual residence is lost?

[41] Yes, in two ways.

[42] The first is indirect. Recital (12) to Regulation B2R states:

‘The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity.’

By proximity, the ‘court clearly meant the practical connection between the child and the country concerned’: Lord Hughes in A v A, cited above, at para [80](ii). In its analysis of the concept of habitual residence the CJEU, both in Proceedings brought by A at para 35 and in the Mercredi case at paras 46 and 47, stressed the significance of recital 12. Of course it does not follow that the court can construe a child’s habitual residence by reference to the result which best serves his interests. The effect of the recital is more subtle and more limited yet nevertheless significant: where interpretation of the concept of habitual residence can reasonably follow each of two paths, the courts should follow the path perceived better to serve the interests of children. Or, to be more specific to the facts of the present case: if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former.

[43] The second is arrestingly direct. In her opinion in Proceedings brought by A Advocate General Kokott said:

‘45. It is also conceivable in exceptional cases that during a transitional stage there will no longer be habitual residence in the former state while the status in the new state has not yet crystallised into habitual residence. Precisely for such a case, article 13 of [Regulation B2R] confers a residual jurisdiction on the courts of the member state in which the child is present.’

In its judgment in the same case the court said:

‘43. However, it is conceivable that at the end of [the integration] assessment it is impossible to establish the member state in which the child has his habitual residence. In such an exceptional case, and if article 12 … is not applicable, the national courts of the member state in which the child is present acquire jurisdiction … pursuant to article 13(1) …’

The court’s reference to a situation in which it is ‘impossible to establish’ the child’s habitual residence might at first sight seem ambiguous. Is it referring to a situation in which the child has an habitual residence somewhere but the evidence does not enable the court to identify the state in which he has it? The answer is clearly no. The court is referring to a situation in which a child has no habitual residence. The court is expressly endorsing para 45 of the Advocate General’s opinion (note its repetition of her words ‘conceivable’ and ‘exceptional’) but is recasting her point within the slightly ambiguous language of art 13 of Regulation B2R, namely ‘where a child’s habitual residence cannot be established’.

[44] In A v A, cited above, Baroness Hale, at para [54](viii), referred to para 45 of the Advocate General’s opinion and to para 43 of the court’s judgment in Proceedings brought by A and observed that it was ‘possible’ for a child to have no habitual residence. Lord Hughes, at para [80](ix), endorsed the European court’s conclusion by saying that the circumstances in which a child had no habitual residence would be ‘exceptional’.

[45] I conclude that the modern concept of a child’s habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.

[46] One of the well-judged submissions of Mr William Tyler QC on behalf of the respondent is that, were it minded to remove any gloss from the domestic concept of habitual residence (such as, I interpolate, Lord Brandon’s third preliminary point in the J case), the court should strive not to introduce others. A gloss is a purported sub-rule which distorts application of the rule. The identification of a child’s habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him:

(a) the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

(c) were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.

[47] Lord Brandon’s third preliminary point in the J case, set out in para [34], above, should no longer be regarded as correct; and Hogg J fell into error in being guided by it. As exemplified by the terms in which Lord Brandon applied it to the facts of that case, also set out in para [34], his analysis of a child’s habitual residence afforded to parental intention a dispositive effect inconsistent with the child-focused European concept now adopted in England and Wales; and the result of his analysis was to consign a large number of children to the limbo of lacking any habitual residence in circumstances in which the modern law expects such a result to be exceptional, albeit conceivable. It is nevertheless fruitless to inquire whether the conclusion of the appellate committee about the child’s loss of habitual residence in Australia within three weeks of his move would remain valid today.

(b) Application

[48] It follows that, in asking whether B’s wish to remain in touch with the appellant was enough to sustain a continuation of her habitual residence in England on 13 February 2014, Hogg J should now be seen to have asked herself far too narrow a question. The question is whether B had by then achieved the requisite degree of disengagement from her English environment; and highly relevant to the answer will be whether she had by then achieved the requisite degree of integration in the environment of Pakistan.

[49] In my opinion each of the following factors might contribute to a conclusion that B had by that date achieved the requisite degree of disengagement from her English environment:

(a) B went to Pakistan with the respondent, who was her biological mother, her primary carer and the person who alone had parental responsibility for her;

(b) B’s removal to Pakistan was lawful;

(c) B knew that she was going to live in Pakistan;

(d) part of B’s ethnic heritage was in Pakistan and certain members of her wider family, albeit unidentified, apparently remain living there;

(e) the respondent took B to Pakistan in the genuine belief that they would have a better life there and with the intention that they would settle there; and

(f) two months earlier the respondent had conducted a reconnoitre of possible arrangements for their future life in Islamabad.

[50] In my opinion each of the following factors might contribute to a conclusion that B had not by that date achieved the requisite degree of disengagement from her English environment:

(a) B had lived in England throughout the five years of her life;

(b) she had never previously set foot in Pakistan;

(c) her language was English and she barely spoke Urdu;

(d) she was a British subject;

(e) the appellant, who was a central figure in B’s life, indeed probably the second most important figure, had been left behind in England;

(f) B’s removal was effected without the appellant’s knowledge, still less approval;

(g) B was aware that her removal was to be kept secret from the appellant;

(h) B retained significant emotional links with the appellant and feared that she would miss her following the move to Pakistan;

(i) other important adult figures in B’s life, in particular both sets of grandparents and two aunts, together with various young cousins, had also been left behind in England;

(j) the home in which B had lived throughout her life had not been sold and remained available for her immediate re-occupation with the respondent;

(k) by 13 February 2014 B had been present in Pakistan for only nine days;

(l) at that time she and the respondent had the right to remain there for only about three months;

(m) they were then staying temporarily with a friend of the respondent;

(n) no independent accommodation had by then been secured by the respondent; and

(o) B was not then even attending school in Pakistan nor even registered with a school there.

(c) Conclusion

[51] I conclude that, taken cumulatively, the factors set out in para [50] are stronger than those set out in para [49] and compel a conclusion that on 13 February 2014 B retained habitual residence in England. Accordingly the appellant’s application issued on that date under the 1989 Act can and should proceed to substantive determination. The judge may wish to consider whether to make B a party to the application, acting by a children’s guardian, and, if so, whether to invite the guardian to instruct an independent social worker to interview B in Pakistan and to explore the circumstances of her life there. Were the court’s eventual conclusion to be that it was in B’s interests to return to England, either occasionally, in order to spend time with the appellant here, or even permanently, in order to reside here again whether mainly with the respondent or otherwise, its order could include consequential provision under s 11(7)(d) of the 1989 Act for the respondent to return her, or cause her to be returned, to England for such purposes.

Nationality

[52] There is accordingly no need to consider whether, on the footing that she had no jurisdiction to determine the appellant’s application under the 1989 Act, Hogg J was entitled to decline to exercise her inherent jurisdiction to make B, as a British subject, a ward of court and to order (or even to consider whether to order) the respondent to return her, at any rate on a temporary basis, to England. In A v A, cited above, this court held that the prohibition comprised in ss 1(1)(d), 2(3) and 3(1) of the 1986 Act against making an order in wardship proceedings for the care of, or contact with, a British child neither habitually resident nor present in England and Wales did not preclude a bare order for his return to England: para [28] (Baroness Hale, with whom the other members of the court agreed).

[53] This court has received extensive submissions from both of the central parties and from each of the three interveners about the proper exercise of the court’s power—or indeed the discharge of its alleged duty—to exercise its inherent jurisdiction where no other jurisdiction exists in which the welfare of a British child can be addressed. With apologies to the solicitors and counsel who, all unremunerated, have laboured to craft them, I decline to lengthen this judgment by addressing almost all of these submissions. I do, however, agree with Baroness Hale and Lord Toulson when, in para [60], below, they reject the suggestion that the nationality-based jurisdiction falls for exercise only in cases ‘at the extreme end of the spectrum’. I consider that, by asking, analogously, whether the circumstances were sufficiently ‘dire and exceptional’ to justify exercise of the jurisdiction, Hogg J may have distracted herself from addressing the three main reasons for the court’s usual inhibition about exercising it. In para [59], below Baroness Hale and Lord Toulson identify those reasons and I agree that arguably none of them carries much force in the present case. To my mind the most problematic question arises out of the likelihood that, once B was present again in England pursuant to an order for her return, the appellant would have issued an application for orders relating to care of her or contact with her. The question would be whether in such circumstances an order for her return would improperly have subverted Parliament’s intention in enacting the prohibitions comprised in ss 1(1)(d), 2(3) and 3(1) of the 1986 Act. Or, in such circumstances, should the interests of the child prevail and indeed would Parliament have so intended?

The dissenting judgments

[54] In para [65], below Lord Sumption complains that the only proposed ground for allowing the appeal is that it is ‘highly unlikely, albeit conceivable’ that one habitual residence will be lost before another is acquired. There, with respect, Lord Sumption misunderstands my judgment.

What I suggest—in para [45], above—is that the modern concept of habitual residence operates in the expectation that an old habitual residence is lost when a new one is gained. The mere unlikelihood of the correctness of an outcome favoured by a judge would be a disgraceful ground for allowing an appeal. The ground for allowing this appeal is that the modern concept of habitual residence identifies the point of its loss as being the stage when the person achieves the requisite degree of disengagement from the old environment (para [48], above); that intention, in this case parental intention, is no longer dispositive in this respect (para [47], above); that highly relevant to the person’s achievement of that requisite degree of disengagement is his achievement of the requisite degree of integration in the new environment (para [48], above); and that, by application of the modern concept, B had not lost her habitual residence in England by 13 February 2014 (para [51], above).

[55] In para [72], below Lord Sumption quotes from para 44 of the opinion of Advocate General Kokott in Proceedings brought by A, cited above. Might I suggest that inadvertently Lord Sumption has in this regard been too selective? The Advocate General suggests:

‘44. … all the circumstances of the individual case must be taken into account where there is a change of place. An indication that the habitual residence has shifted may in particular be the corresponding common intention of the parents to settle permanently with the child in another state. The parents’ intention may manifest itself, for example, in external circumstances such as the purchase or lease of a residence in the new state, notifying the authorities of the new address, establishing an employment relationship, and placing the child in a kindergarten or school. As a mirror image, abandoning the old residence and employment and notifying the authorities of departure suggest that habitual residence in the former state is at an end.’

I have set the words quoted by Lord Sumption in italics. My understanding, however, is that in para 44 the Advocate General recommends a composite consideration of ‘all the circumstances’ both in the new environment and, ‘as a mirror image’, in the old environment in order to determine whether habitual residence has ‘shifted’ from the latter to the former. She does not suggest consideration only of severance of links with the old environment with a view to determining whether, even if no new habitual residence has been gained, the old one has been lost. For it is only in the next paragraph that she turns to that possibility.

[56] Both Lord Sumption at para [70] and Lord Clarke at para [92] consider that it makes no sense to regard a person as habitually resident in England and Wales if she is not resident there at all because she has left it to live permanently elsewhere. With respect, my view is different. For me it makes no sense to regard a person’s intention, in this case a parent’s intention, at the moment when the aeroplane leaves the ground as precipitating, at that moment, a loss of habitual residence. At all events, and more importantly, I remain clear that such is not the modern law.

LADY HALE and LORD TOULSON SCJJ.

[57] We agree fully with Lord Wilson’s reasoning and conclusion on the issue of habitual residence. He has described the identification of a child’s habitual residence as overarchingly a question of fact (para [46]). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law, because the concept is a matter of law but its application is a matter of fact. We do not, however, understand Lord Wilson to be laying down a rule of law that a child must always have an habitual residence: rather that, as a matter of fact, the loss of an established habitual residence in a single day before having gained a new one would be unusual. In this particular case, although the respondent said that her intentions were permanent, looked at from the child’s point of view, on the relevant date they had been in Pakistan for only nine days, they had no home there, and she had not yet been entered into a school. Had the respondent then changed her mind and decided that the move was a bad idea, it is unlikely that a court would have held that the habitual residence of either of them had changed during those few days.

[58] Lord Wilson’s conclusion on the issue of habitual residence makes it unnecessary to reach a decision on the hypothetical question whether it would have been right for the court to exercise its jurisdiction founded on B’s nationality if she had no habitual residence at the time when these proceedings began. It is not in doubt that the restrictions on the use of the inherent or parens patriae jurisdiction of the High Court in the Family Law Act 1986 do not exclude its use so as to order the return of a British child to this country: this court so held in Re A (children) (jurisdiction: return of child) sub nom Re A v A (children: habitual residence) (Reunite International Child Abduction Centre intervening) (‘A v A’) [2013] UKSC 60, [2013] 3 FCR 559, [2014] 1 All ER 827. The Court of Appeal (([2015] EWCA Civ 886, [2016] 2 FCR 307, [2016] AC 606) devoted a large proportion of their judgment to this aspect of the case. Their approach is summed up in para [45]:

‘Various words have been used down the years to describe the kind of circumstances in which it may be appropriate to make an order—“only under extraordinary circumstances”, “the rarest possible thing”, “very unusual”, “really exceptional”, “dire and exceptional”, “at the very extreme end of the spectrum”. The jurisdiction, it has been said, must be exercised “sparingly”, with “great caution” … and with “extreme circumspection”. We quote these words not because they or any of them are definitive—they are not—but because, taken together, they indicate very clearly just how limited the occasions will be when there can properly be recourse to the jurisdiction.’

[59] Lord Wilson has listed a number of important issues to which that question would have given rise and which must wait for another day. It is, however, one thing to approach the use of the jurisdiction with great caution or circumspection. It is another thing to conclude that the circumstances justifying its use must always be ‘dire and exceptional’ or ‘at the very extreme end of the spectrum’. There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders. It is, to say the least, arguable that none of those objections has much force in this case: there is no applicable treaty between the UK and Pakistan; it is highly unlikely that the courts in Pakistan would entertain an application from the appellant; and it is possible that there are steps which an English court could take to persuade the respondent to obey the order.

[60] The basis of the jurisdiction, as was pointed out by Pearson LJ in Re P (GE) (an infant) [1964] 3 All ER 977 at 983, [1965] Ch 568 at 587, is that ‘an infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the sovereign and so is entitled to protection’. The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to ‘cases which are at the very extreme end of the spectrum’, per McFarlane LJ in Re N (abduction: appeal) [2012] EWCA Civ 1086, [2013] 1 FLR 457 at [29]. The judgment was extempore and it was not necessary to lay down a rule of general application, if indeed that was intended. It may be that McFarlane LJ did not so intend, because he did not attempt to define what he meant or to explain why an inherent jurisdiction to protect a child’s welfare should be confined to extreme cases. The judge observed that ‘niceties as to quite where the existing extremity of the jurisdiction under the inherent jurisdiction may be do not come into the equation in this case’ (para [31]).

[61] There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality-based inherent jurisdiction may run counter to the concept of comity, using that expression in the sense described by US Supreme Court Justice Breyer in his book The Court and the World (2015) pp 91–92:

‘… the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of “comity” has assumed an expansive meaning. “Comity” once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one another’s toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.’

[62] If a child has a habitual residence, questions of jurisdiction are governed by the framework of international and domestic law described by Lord Wilson in paras [27] to [29]. Conversely, Lord Wilson has identified the problems which would arise in this case if B had no habitual residence. The very object of the international framework is to protect the best interests of the child, as the Court of Justice of the European Union stressed in Mercredi v Chaffe (Case C‐497/10 PPU) [2012] Fam 22, [2011] 3 WLR 1229. Considerations of comity cannot be divorced from that objective. If the court were to consider that the exercise of its inherent jurisdiction were necessary to avoid B’s welfare being beyond all judicial oversight (to adopt Lord Wilson’s expression in para [26]), we do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity.

LORD SUMPTION SCJ

(dissenting) (with whom Lord Clarke agrees).

Introduction

[63] I regret that I am unable to agree with the opinion of the majority.

[64] The reason, in summary, is that while the test for what constitutes habitual residence is a question of law, whether it is satisfied is a question of fact. The judge directed herself in accordance with all the relevant authorities. She heard the evidence of both ladies in addition to reviewing a substantial volume of other material. She found as a fact that the child lost her habitual residence in the United Kingdom on 3 February 2014, when she left the United Kingdom with the respondent to start a new life in Pakistan with no intention of returning. That finding was upheld by the Court of Appeal ([2015] EWCA Civ 886, [2016] 2 FCR 307, [2016] AC 606). It followed that the child was not habitually resident in the United Kingdom on 13 February when these proceedings were begun, even though by then she was probably not yet sufficiently integrated into the life of Pakistan to have acquired habitual residence there.

[65] The sole ground on which it is now proposed to set the judgment aside is that it is ‘highly unlikely, albeit conceivable’ that habitual residence will be lost before a new habitual residence has been acquired. I remain uncertain whether this is said to be a principle of law or a proposition of fact. So far as it is a principle of law, it appears to me to be wrong. So far as it is a proposition of fact, the judge addressed all the relevant considerations in making her findings.

[66] It is said that this result leaves the child in a jurisdictional limbo because on that footing she has no habitual residence anywhere. In my opinion, there is no jurisdictional limbo. Habitual residence is the primary test for jurisdiction, but it is not the only one. In English and EU law, in the absence of an ascertainable habitual residence, jurisdiction may be founded on the presence of the child. No attempt has been made to prove that the law of Pakistan is any different, and I would be very surprised if it was. The real objection to the courts of Pakistan is not that they lack jurisdiction but that they are likely to disapprove of same-sex relationships and will not necessarily recognise a non-genetic family relationship. That is a source of legitimate concern to the English courts, but it is not a basis on which they are entitled to claim jurisdiction.

Loss of habitual residence

[67] I will deal first with the suggestion that there is something wrong in principle with a finding that a former habitual residence has been lost before a new one has been obtained.

[68] The habitual residence of a child is the primary basis of jurisdiction in member states of the European Union, by virtue of art 8 of Council Regulation 2201/2003/EC (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation 1347/2000/EC) (OJ 2003 L338 p 1). In Proceedings brought by A (Case C‐523/07) [2010] Fam 42, [2009] ECR I-2805, the Court of Justice held that this meant that the presence of the child within the jurisdiction of a state must be:

‘not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment … In particular, the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration … As the Advocate General pointed out in para 44 of her opinion, the parents’ intention to settle permanently with the child in another member state, manifested by certain tangible steps such as the purchase or lease of a residence in the host member state, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that state.’ (Paragraphs 38–40.)

This statement was substantially repeated in Mercredi v Chaffe (Case C‐497/10 PPU) [2012] Fam 22, [2011] 3 WLR 1229, and was adopted by this court as part of the domestic law of England in Re A (children) (jurisdiction: return of child) sub nom Re A v A (children: habitual residence) (Reunite International Child Abduction Centre intervening) (‘A v A’) [2013] UKSC 60, [2013] 3 FCR 559, [2014] 1 All ER 827.

[69] Recital (12) of the Council Regulation recites that ‘the grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child’. In the context of art 12 of the Regulation, the Court of Justice has recently drawn attention to this recital in E v B (Case C‐436/13) [2015] 1 FCR 318, [2015] Fam 162 (para 45). But its value, as both the recital and the judgment make clear, is as a guide to the interpretation of the Regulation’s jurisdictional rules. It explains why the social integration test of habitual residence has been adopted. Now that it has been adopted, the task of the courts is to apply it. The recital is not a licence to treat questions of jurisdiction as discretionary or to import legal qualifications into the essentially factual exercise of determining where a child is socially integrated and where she is not.

[70] A person may be resident in a country without being habitually resident there. It is inherent in the concept of a ‘habitual’ residence that in many, probably most cases, a new residence may not become habitual until some time has elapsed. The same is true of the integration test for habitual residence which has been adopted by EU and English law. Integration into the social and family environment of a new place of residence cannot always be achieved at once. However, it is self-evidently easier to lose a habitual residence at once. This is because the severance of old links is a unilateral act. It can be achieved faster than the acquisition of new ones which involve the engagement of other people and institutions. It makes no sense to regard a person as habitually resident in the United Kingdom if she is not resident there at all because she has left it to live permanently elsewhere. The fact that there is a house in the United Kingdom which could be reoccupied or that there are friends or relations in the United Kingdom to which the child could return are irrelevant if (as the judge accepted) the child had been lawfully and permanently removed from the country.

[71] Of course this does mean that there may be a period during which the child, although resident in a particular country is not ‘habitually resident’ anywhere. Other jurisdictional tests, such as presence within the jurisdiction, nationality or domicile would have had the advantage of allowing a seamless transition from one status to another. But the law has not adopted these tests. Instead it has adopted a test which by its nature is liable to produce a hiatus. This is simply an inescapable consequence of the concept of a ‘habitual’ residence in a case where a child migrates from a familiar to an unfamiliar place.

[72] The courts have had no difficulty in accepting these as obvious propositions of fact. Advocate General Kokott in Proceedings brought by A acknowledged that ‘abandoning the old residence and employment and notifying the authorities of departure suggest that habitual residence in the former state is at an end’ (para 44) and that ‘in exceptional cases … during a transitional stage there will no longer be habitual residence in the former state while the status in the new state has not yet crystallised into habitual residence’ (para 45). She thought that such situations would be exceptional, but in the nature of things they can be no more exceptional than the facts which give rise to them. In Re J (a minor) (abduction: custody rights) [1991] FCR 129 at 140, [1990] 2 All ER 961 at 965, Lord Brandon of Oakbrook, speaking for a unanimous appellate committee, observed that:

‘there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead.’

The courts have more recently expressed reservations about parts of this passage, mainly because it tends to overstate the difficulty of acquiring a new habitual residence. As Baroness Hale observed in A v A, supra, at para [44], this is ‘best seen as helpful generalisations of fact, which will usually but not invariably be true’. That is of course because habitual residence is a question of fact, as Lord Brandon himself had pointed out immediately before the passage cited. She went on, in the same paragraph, to adopt that part of Lord Brandon’s generalisation which is directly relevant to the present case:

‘I would not accept that it is impossible to become habitually resident in a single day. It will all depend upon the circumstances. But I would accept that one may cease to be habitually resident in one country without having yet become habitually resident in another.’

[73] If an old habitual residence cannot be lost until a new one has been acquired, it must therefore be by virtue of some rule of rule of law by which regardless of the facts the severance of the child’s links with her former habitual residence is somehow deemed in law to be suspended pending the acquisition of a new habitual residence. Yet it is far from clear to me how this is to be reconciled with what is essentially a factual inquiry, as every court which has hitherto considered this question has emphasised. In A v A at para [39] Baroness Hale deprecated the tendency of the courts to ‘overlay the factual concept of habitual residence with legal constructs’. These observations were later repeated by Baroness Hale in Re KL (a child) (abduction: habitual residence: inherent jurisdiction) [2013] UKSC 75, [2014] 1 FCR 69, [2014] 1 All ER 999 at [20]–[21], and more recently by Lord Reed, with whom every other member of this court agreed, in the Scottish case of AR v RN (children) (wrongful retention: habitual residence), sub nom Re R (Children) (Reunite International Child Abduction Centre intervening) (‘R v R’) [2015] UKSC 35, [2015] 2 FCR 570, [2015] 3 All ER 749 at [17].

[74] The judgment of the Court of Appeal, delivered by Black LJ, put the point, at para [29], in terms which I cannot improve upon:

‘The arguments advanced by the appellant and also on behalf of the intervener, Reunite, appeared at times to amount to an invitation to swathe habitual residence in sub-principles, or glosses, or comments, in a way which would fly in the face of the determinedly factual approach of the European jurisprudence and the Supreme Court. So, for example, we were invited to say that it would only be in exceptional cases that a child would lose one habitual residence before acquiring another … it may be that there will turn out to be relatively few cases in which the habitual residence of a child does not transfer seamlessly from one country to another, but if so, that will be because the facts tend to be that way and not because the courts impose upon themselves the artificial discipline of only finding it otherwise in exceptional circumstances.’

A jurisdictional limbo?

[75] The notion that there must be a seamless transfer of habitual residence is a classic legal construct, which has no place in the essentially factual inquiry involved in identifying a child’s habitual residence. The reason given by the majority for adopting that notion is not that it is factually impossible, or virtually so, for a child to have no habitual residence. Their reason is that it is legally undesirable because it produces a jurisdictional limbo. However it may be described by its authors, I find it impossible to regard this as anything other than a proposition of law. And I respectfully suggest that it is not correct. Article 13 of the Council Regulation provides for residual jurisdiction to lie with the courts of the country where the child is present in a case where a child’s habitual residence ‘cannot be established’. As Advocate General Kokott pointed out at para 45 of her advice in Proceedings brought by A [2010] Fam 42, [2009] ECR I-2805, art 13 was included precisely in order to cover the situation where a former habitual residence has been lost but the child’s status in her new home ‘has not yet crystallised into habitual residence’. A similar provision appears in art 6(2) of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996, concluded on 19 October 1996 (Cm 7727). Jurisdiction based on presence is also provided for by ss 2 and 3 of the Family Law Act 1986 in cases where neither the Council Regulation nor the 1996 Hague Convention applies, and it serves the same function in that context. For this reason, there is no need for a principle of seamless transfer except in cases where the child has been removed to a state (if indeed there is such a state) where there is no jurisdiction founded on the presence of the child within its territory.

[76] It may well be true, as Lord Wilson observes (para [30]), that jurisdiction based on presence is unsatisfactory because in a case where a child has no habitual jurisdiction it allows an adult to move a child to a jurisdiction thought to be favourable to his or her case. However, in the first place, adults can do that anyway. Secondly, for better or for worse that is what the Regulation, the Conventions and the Act provide. And third, the English courts have no right under the Family Law Act to assert jurisdiction simply on the ground that they do not approve of the law or practice which would be applied in the courts of the country where the child is located. So far as this is a problem, the solution to it is not to construct an artificial habitual residence in the place which the child has left for good. It is for the English courts to be more ready than they have traditionally been to recognise that a new habitual residence can be rapidly acquired. The Council Regulation assumes that it will normally have been acquired in three months: see art 11(7); and in A v A [2013] 3 FCR 559, [2014] 1 All ER 827 Baroness Hale declined to assume that it could not be acquired in a single day.

[77] It should be noted that the present issue would not arise in a case where the child was wrongfully removed in breach of rights of any person’s rights of custody. This is because art 10 of the Council Regulation confers jurisdiction on courts of the country where the child was habitually resident immediately before his removal. There are similar provisions in art 4 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague, 25 October 1980; TS 66 (1986); Cm 33) and art 7 of the 1996 Hague Convention. The fact that the child may have no habitual residence for a period after his removal is therefore irrelevant. The appellant’s difficulty in this case is that she had no parental rights at the time of the child’s departure from the United Kingdom. She was not registered as a parent at birth. There was no civil partnership, no adoption, no parental rights agreement and no court order recognising her status with regard to the child. The judge found that the respondent was not trying to escape from the jurisdiction of the English court. She was in law the child’s sole parent who was absolutely entitled to exercise her parental rights by removing her to Pakistan. Although Lord Wilson characterises the removal as ‘secret’ and ‘clandestine’, the judge made no finding of underhand conduct which could warrant these pejorative epithets.

The judge’s findings

[78] The judge directed herself in accordance with the observations of Lord Brandon in Re J (a minor) (abduction: custody rights [1991] FCR 129, [1990] 2 All ER 961, so far as these were approved and explained by the Supreme Court in A v A and Re KL [2014] 1 FCR 69, [2014] 1 All ER 999. She concluded that the child was too young to have a habitual residence other than that of the woman who had always been her primary carer and on whom she was wholly dependent. That seems an obvious conclusion in the case of a five-year-old child, but at the very least it was a permissible one. I do not understand the majority to dissent from it.

[79] The judge then set out at paras [27]–[28] her reasons for concluding that the habitual residence of both of them in the United Kingdom was lost when they left for Pakistan:

‘[27] The mother said she left this jurisdiction to make a new life in Pakistan. She had actually been thinking about it seriously since July of last year. She made her fact-finding trip in November following which she made a decision. She had the support of her family. They knew what she was about. She and [B] said their goodbyes to school, to the family. They left their home, packed up their possessions and the mother sent a letter with the keys of the house to the applicant. She is admittedly still paying her share of the mortgage to preserve her share of the asset, that matter has yet to be resolved between the two ladies. She had the intention to set up a new life. She had lost her job. She was finding it financially difficult to be in this country even when she was working and she had laid the ground for a new life in Pakistan. It is important to note what she did immediately upon arrival in Pakistan. Until the end of April she was unaware of the applicant’s application to this court, but the mother found herself a new home and a school for the child to which they both moved in on 19 February, just 15 days after their arrival. They had previously been staying with friends. She had work already upon her arrival, at which she has continued, and she made an application for an ID card, which she obtained before she became aware of these proceedings.

[28] As I have said, I am not satisfied she was running away as alleged by the applicant, and I accept her intention that she intended to create a new life for herself and for [B] in Pakistan. On that basis, she lost her habitual residence here.’

Next the judge considered the perception of the child. Without making any finding about the appellant’s evidence that the child wished to keep in touch with her, the judge held that even if she did, that did not mean that her habitual residence remained in the United Kingdom after 3 February 2014:

‘The mother is the sole legal parent and in moving her she had planned a life away from this country. It was not a wrongful removal. She was exercising her parental responsibility. [B]’s wish to remain in touch is something that I must consider. It does not necessarily mean that the child has to remain in the country. There are many children throughout the world who remain in touch with families or members of a family or even friends when they are relocated by their parents. This is another relocation and a child wishing to remain in touch with a significant person. In my view her wish to remain in touch with the applicant does not justify making or continuing an individual habitual residence in this country when the mother has abandoned her own.’

[80] This is a classic evaluative judgment on a question of fact with which this court should in principle decline to interfere, just as the Court of Appeal declined to do so. If it was legally possible for the respondent and the child to terminate their previous habitual residence in the United Kingdom before their residence in Pakistan became ‘habitual’, then it is difficult to envisage a clearer case of it than this one. That leaves only the possibility that it might not be legally possible to create such a hiatus. But the authorities in this court which show that it is legally possible are consistent, recent and in my respectful opinion plainly right.

Inherent jurisdiction

[81] The inherent jurisdiction of the High Court with respect to children originated in an age where the civil courts had no statutory family jurisdiction. It is based on the concept of a quasi-parental relationship between the sovereign and a child of British nationality. It enables the courts to make a British child a ward of court, even if the child is outside the jurisdiction when the order is made. The continued existence of an inherent jurisdiction in an age of detailed and comprehensive statutory provision is something of an anomaly. The basis of the jurisdiction is, moreover, difficult to reconcile with the content of the statutory rules about jurisdiction. It is based on nationality, whereas the statutory rules are based on habitual residence and presence. None the less, its survival was implicitly recognised by ss 1(1)(d) and 2(3) of the Family Law Act 1986, which prohibited the exercise of the jurisdiction so as to give care of a child to any person or provide for contact with or the education of a child, unless either the court had jurisdiction under the Council Regulation or the 1996 Hague Convention or, if neither of these applied, the child is present or habitually resident in the United Kingdom. Its survival in other cases was acknowledged by this court in A v A, supra, subject to the proviso that its exercise would call for ‘extreme circumspection’ (paras [63], [65]). The case law, which fully bears out that proviso, is summarised in the judgment of the Court of Appeal, and I will not repeat that exercise here.

[82] The appellant in the present case invites the court, on the footing that there is no statutory jurisdiction, to use its inherent jurisdiction to order the return of the child to the United Kingdom. Such orders have been made in two classes of case, both of which can broadly be described as protective. The first comprises abduction cases before the enactment of a statutory jurisdiction to deal with them. The second comprises cases where the child is in need of protection against some personal danger, for example where she has been removed for the purpose of undergoing a forced marriage or female genital mutilation. All of the modern cases fall into this last category.

[83] A dissenting judgment is not the place for a detailed examination of the ambit of the inherent jurisdiction. Nor is such an examination required in order to determine this appeal. For present purposes, it is enough to make three points.

[84] First, the jurisdiction is discretionary, and should not be overturned in the absence of some error of principle or misunderstanding of the facts, unless the judge has reached a conclusion that no judge could reasonably have reached. The judge declined to exercise the jurisdiction because the appellant had been entitled to exercise her parental rights by taking the child to Pakistan and there was no reason to regard the child as being in danger there. In those circumstances, the admitted detriment to the child in being deprived of face-to-face contact with the appellant could not justify requiring the respondent to bring the child back. The Court of Appeal reached the same conclusion for substantially the same reason. The situation, they said (para [53]), ‘falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction’. I agree with this, but on any view I think that it was a view that a judge could reasonably take.

[85] Secondly, the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme. If, as Baroness Hale and Lord Toulson suggest, the use of the inherent jurisdiction is not reserved for exceptional cases, the potential for it to cut across the statutory scheme is very considerable. I have no doubt that it would do so in this case. In the first place, it would fall to be exercised at a time when the child will have been with her mother in Pakistan for at least two years, and will probably have become habitually resident there. Secondly, it seems plain that if an application under the inherent jurisdiction had been made by, say, an aunt or a sister of the respondent, there could be no ground for acceding to it. It is necessary to make this point in order to remind ourselves that it is to protect her relationship with the child on the basis that she should be regarded as a co-parent that the appellant is invoking the inherent jurisdiction of the court. The real object of exercising it would be to bring the child within the jurisdiction of the English courts (i) so that the court could exercise the wider statutory powers which it is prevented by statute from exercising while she is in Pakistan, and (ii) so that they could do so on different and perhaps better principles than those which would apply in a court of family jurisdiction in Pakistan. Thirdly, this last point is reinforced by the consideration that the appellant’s application in the English courts is for contact and shared residence. This is not relief which the statute permits to be ordered under the inherent jurisdiction, in a case where there is no jurisdiction under the Council Regulation or the 1996 Hague Convention. I do not accept that the inherent jurisdiction can be used to circumvent principled limitations which Parliament has placed upon the jurisdiction of the court. For these reasons, in addition to those given by the judge and the Court of Appeal, I do not think that an order for the child’s return could be a proper exercise of the court’s powers.

[86] Third, if there were grounds for believing the child to be in danger, or some other extreme facts justifying the exercise of the inherent jurisdiction, it would no doubt be possible in the exercise of the court’s inherent jurisdiction to direct an independent assessment of the situation of the child in Pakistan. Unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country. In the present case, that assessment would also have to take account of the impact on the child of her removal for the second time of her life from a place where she is by now presumably settled, as well as the impact on her of the disruption of her primary carer’s life which would be involved in requiring her to abandon her life and job in Pakistan to return to a country where she has no job, is estranged from her family and has no desire to reside. But we are not in that territory. The courts below have held that there are no such grounds, and we have no basis on which to disagree with them. The mere absence of statutory jurisdiction in the English courts cannot possibly be a reason for exercising the inherent jurisdiction. On the contrary, in a case like this it is a reason for not doing so.

[87] Given that the inherent jurisdiction exists to enable the English court to exercise the sovereign’s protective role in relation to children, from what is it said that B needs to be protected? As I understand it, the suggestion is that she needs to be protected from the presumed unwillingness of the courts of Pakistan to recognise the status of the appellant in relation to the child in the way that the English court would now do if they had statutory jurisdiction. I cannot regard this as a peril from which the courts should ‘rescue’ the child by the exercise of what is on any view an exceptional and exorbitant jurisdiction.

Disposition

[88] For these reasons, I would dismiss the appeal.

LORD CLARKE SCJ.

[89] In this appeal I have reached the same conclusions as Lord Sumption, essentially for the reasons he gives.

Habitual residence

[90] Hogg J held that B lost her habitual residence here when she was taken to Pakistan and the Court of Appeal held that there was no reason to interfere with that conclusion. Hogg J is a very experienced family lawyer. So too are at least two members of the Court of Appeal, namely Sir James Munby P and Black LJ, who gave the judgment of the court to which all three members contributed ([2015] EWCA Civ 886, [2016] 2 FCR 307, [2016] AC 606). My principal reason for preferring the opinion of Lord Sumption to that of the majority is that there is, in my opinion, no principled basis for holding that the decision of Hogg J was wrong, either in law or on the facts. She was entitled to reach the conclusions which she did and the Court of Appeal were right to dismiss the appeal from her decision.

[91] In short I agree with Lord Sumption’s conclusion at para [80] that Hogg J’s judgment is a classic evaluative judgment on a question of fact with which this court should decline to interfere, just as the Court of Appeal declined to do.

[92] In particular, after setting out her conclusions of fact at paras 26 to 28, Hogg J was in my opinion entitled to hold (as she did at para 29) that, when the mother lost her habitual residence on leaving the United Kingdom, so did B. I agree with Lord Sumption that there is nothing wrong in principle with a finding that a former habitual residence has been lost before a new one has been obtained. All depends upon the facts of the particular case. On the facts here I agree with him (at para [96]) that it is self-evidently easier to lose a habitual residence at once than acquire a new one and that it makes no sense to regard a person as habitually resident in the United Kingdom if she is not resident at all because she has left to live permanently elsewhere. Finally, I agree with him that if, as Hogg J held here, the child had been lawfully and permanently removed from the country, the fact that there is a house in the UK which could be reoccupied or there are friends and relations to whom the child could return is irrelevant.

[93] In para [28] of the judgment in the Court of Appeal, after referring to a number of recent cases including Re A (children) (jurisdiction: return of child) sub nom Re A v A (children: habitual residence) (Reunite International Child Abduction Centre intervening) (‘A v A’) [2013] UKSC 60, [2013] 3 FCR 559, [2014] 1 All ER 827, Black LJ said this:

‘The European formulation of the test (to be found in Proceedings brought by A at (para 2), as quoted in A v A at para [48]) is the correct one, namely that “the concept of ‘habitual residence’ … must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment”. The inquiry is a factual one, requiring an evaluation of all relevant circumstances in the individual case. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It should not be glossed with legal concepts. And, as Lord Reed observed at [18] of Re R, when the lower court has applied the correct legal principles to the relevant facts, its evaluation will not generally be open to challenge unless the conclusion which it reached was not reasonably open to it.’

I respectfully agree.

[94] Black LJ then set out her para [29], which is quoted with approval by Lord Sumption. Finally, in para [30] she expressed the view that Hogg J’s approach to habitual residence was in line with the authorities. She then specifically (and correctly) considered B’s position separately from that of her mother and concluded:

‘[Hogg J] described in her judgment the situation in this country and the situation in Pakistan in such a way as to show that she had looked both at what P was leaving and what was awaiting her in Pakistan. In short, she applied the proper principles to the relevant facts and there is no reason to interfere with her finding that P lost her habitual residence here when she left for Pakistan.’

Again, I agree.

[95] For these reasons, which are essentially the same as those given by Lord Sumption, namely that neither Hogg J nor the Court of Appeal erred in fact or law, I would have dismissed the appeal on the habitual residence point.

Inherent jurisdiction

[96] I agree with Lord Sumption that the appeal on this ground should also be dismissed. I do so for essentially the same reasons as on the habitual residence point, namely that Hogg J made no error of fact or law and that the Court of Appeal correctly so held.

[97] I agree with Baroness Hale and Lord Toulson that the court must approach the use of the inherent jurisdiction with great caution and circumspection for the reasons they give. However, I agree with Lord Sumption that on the facts of this case it should not use the inherent jurisdiction to order B to be returned to the jurisdiction in order to enable it to exercise its statutory jurisdiction in circumstances in which it would not otherwise have that jurisdiction. This is not to say that there may not be circumstances in which it would be appropriate for the English court in another case to consider the welfare of the child more generally without requiring his or her return to the jurisdiction, at any rate in the first instance. As ever, all will depend on the circumstances.

Appeal allowed.