Case Study #2 – Child’s Habitual Residence and Child Abduction

(F), is a British national whilst (M), is a Pakistani national. They were married in Pakistan but lived in England. They have three children: two daughters, (A) aged 13, (B) 10, and one son, (G) aged 9. The father, (F) and the three children (A, B and C), were born in England, have dual British and Pakistani nationality whilst the mother, (M) has indefinite leave to remain in the United Kingdom. (F), receives a promotion for work and the family moves to Pakistan for three years, with regular visits to England. All three children attend international school for the three years, and they speak English but not Pakistani.

(drawn from In the Matter of A (Children) (AP) [2013] UKSC 60) and (C-497/10: Mercredi v Chaffe)

1. Where are the three children habitually resident? England

Variation 1.1

 After three years of being in Pakistan, (F), and (M), then have a third child (H) who is now 12 months and has never been to England. (H), has Pakistani and British nationality. (M), no longer wishes to live in Pakistan and returns to England, but is told by (F) the children will remain in Pakistan and continue attending international school. (M), files an application for wrongful retention under Art 10 BIIR in the High Court of England.

Suppose that (A) an adolescent, strongly objects to being returned to the UK because she is integrated into her environment, begins speaking Pakistani, and also attends a religious school.

(drawn from In the matter of LC (Children) In the Matter of LC (Children) (No 2))

1. Where is H habitually resident? Pakistan
2. Where would (A) be habitually resident? Pakistan

Variation 1.2

Suppose that (H) spent three months in England after birth, and was then wrongfully abducted and taken by the father back to Pakistan for a short period.

1. Does (H)’s physical presence in England impact his habitually residence? No.

Variation 1.3

Suppose that (H) is found to be habitually resident in the UK and returned to (M) and the two middle children (B) and (C) are very close with their older sister, (A). However, (B) and (C) are not integrated into Pakistan and do not speak the language. 

1. If the courts found that (A) was habitually resident in Pakistan, how would this impact the habitual residence of (B) and (C)? It could impact because the relationship between brothers and sisters shall be preserved.

Variation 1.4

Suppose that (B) and (C) were 6 and 5 years old respectively.

1. How would their age impact their habitual residence with respect to (A)? It could impact even more because the relationship between brothers and sisters is even more strong when they are young than when they are adolescent.