February 4, 2016
Source: Daily mail
Legal experts say a Supreme Court ruling on an estranged lesbian couple’s dispute over their seven-year-old daughter will have implications for children taken abroad during parental tug-of-love battles.
Supreme Court justices heard that one woman was the youngster’s biological mother and sole legal parent and the second woman considered herself a de facto parent.
Their relationship broke down in 2011, more than three years after the girl was conceived by IVF treatment and born.
The girl had been taken to Pakistan by her biological mother in early 2014 and the second woman launched legal action – asking judges to order the youngster’s return to the UK.
A High Court judge and Court of Appeal judges concluded they did not have the jurisdiction to make such an order because the girl was not habitually resident in the UK when legal proceedings were launched.
But five Supreme Court justices have overturned those decisions by a three-two majority.
They ruled on Wednesday that the girl had been habitually resident in the UK and allowed an appeal by the second woman.
The case will now return to the High Court where a judge will make decisions on what happens next.
Supreme Court justices heard that a court in Pakistan would be unlikely to consider the case “because of the strength there of negative attitudes towards that sort of adult relationship”.
Lawyers raised fears that the little girl would be in a legal limbo with no judge able to decide what was in her best interests.
A lawyer representing the second woman said the Supreme Court had clarified the law relating to a child’s “habitual residence”.
Maria Wright, who works for Freemans Solicitors, added: “The consequence of the Supreme Court’s decision is that the English court can properly consider what is in (the child’s) best interests and, if appropriate, order contact or (the child’s) return to England.”
Other specialist lawyers echoed her views.
“The decision is significant for a number of reasons. Quite apart from being the first international abduction case involving the child of a same sex couple, the ruling will prevent children being in a legal limbo when they are taken abroad by one of the parents,” said Peter Morris, a family lawyer at law firm Irwin Mitchell.
“This makes it unlikely that one parent can act unilaterally and bring about an immediate change to a child’s habitual residence and avoid proceedings by abducting them.
“At a time when the number of international relationships is increasing, the decision is to be welcomed.”
Joanna Farrands, a partner at law firm Barlow Robbins, added: “This is a fantastic outcome showing that the interests of the child must be the focus in international parental disputes.
“This outcome is a positive development for children who have lived in multiple countries. It shows that if an abducting parent unilaterally removes a child from the UK they will not immediately lose their residence in England and Wales. ”
She added: “Pakistan appears to consider homosexuality as ‘abnormal sexual behaviour’, therefore the only recourse for the remaining parent was through the jurisdiction of England and Wales.”
The second woman said she was “relieved”.
“It has been a very long process to get to this result, and I am delighted that someone will now be able to look at what is actually in (the child’s) best interests,” she added.
“I very much hope that (the child) and I will now be able to see each other again.”
Judges heard that the second woman was a British woman of Indian ethnicity – and the girl’s biological mother a British woman of Pakistani ethnicity.
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