Family Law Hub

A v A [2013] EWHC 3298 (Fam)

Case involving the return of 4 children from Pakistan where the youngest had never set foot in England.

  • In brief: Following  the decision of the Supreme Court in Re A ( A Child) [2013] UKSC 60, the case was remitted to Mrs Justice Parker for determination of whether the High Court should exercise its  jurisdiction to order the return of "H", the child who had been born in Pakistan and had never been physically present in the United Kingdom, on the basis that he was a British national. 

    At this hearing, the father ("F") conceded very late in the day that he should bring the four children, who remained in Pakistan, to the UK. However, due to his previous form, F's concession was viewed with extreme circumspection and so Parker J proceeded to determine the case in light of the guidance given by the Supreme Court. 

    Firstly, she reminded practitioners that the Family Law Act 1986 specifically retains a jurisdiction that enables the court to make a return order on the basis of nationality.  

    In considering whether to exercise the court's jurisdiction on the basis of H's British nationality, Parker J bore in mind that previous decisions of the Court of Appeal had urged the court to be "extremely circumspect" and to "refrain from exorbitant jurisdictional claims founded on nationality". She accepted the mother's ("M") submission that the nationality jurisdiction was to be relied on only in the rarest possible cases, 

    On the facts, England was found to be most appropriate forum in which the children's future should be litigated. The older children had spent their lives in this jurisdiction until they were retained in Pakistan against their mother's wish; the father was born and had spent the majority of his adult life here; and, if proceedings were heard in Pakistan, not only would the mother face practical problems and be likely to experience concerted opposition from the father and his family, but history suggested that she would be likely to have extremely limited support from her own family. In addition, in Pakistan the mother would have no capacity financially to access legal advice. 

    The father was ordered to return the children to this jurisdiction immediately and to take all steps within his power to implement that return.

Case note, published: 14/01/2014

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See also

  • The latest in the case involving the return of 4 children from Pakistan, where the 3 eldest were habitually resident in England, but the youngest was born in Pakistan and had never set foot in England. Mrs Justice Parker ruled that the return order still stood in respect of the 3 older children but that, as the youngest was a sibling and they were a group of 4, their futures should be heard together. F now accepted that he should bring the children back to England but until the children were returned, or at least on their way, the judge refused to release funds of the F which were subject to a freezing order where such a release might give more opportunity for obstruction. Judgment, 11/11/2013, free

Published: 14/01/2014

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