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(Court of Appeal, Thorpe and Rimer and Patten LJJ, 26 October 2012)
The parents of the four children married in Pakistan in 1999 and then came to England where the three elder children were born. The relationship deteriorated and the mother went to a refuge and sought police protection but dropped the charges under family pressure. She took the children to Pakistan for a holiday in 2009 where she was pressured into a reconciliation, which she understood to be on the basis the family would return to England. However she and the children were kept in Pakistan against her will, she was abused and effectively imprisoned. She had another child and in May 2011 she recovered her passport and flew to England. The father issued custody proceedings in Pakistan which were not served. Immediately on her return, the mother obtained an order without notice for the return of the children. This was made in wardship and the four children were declared to be habitually resident in England. The mother also applied for and obtained a freezing injunction. In February 2012 Parker J repeated previous return orders. The paternal family appealed arguing that Pakistan was the correct jurisdiction and that the youngest child who had never been to this country could not be habitually resident here.
The appeal would be allowed to the extent that the youngest child was not habitually resident here. Thorpe LJ dissenting.
Patten and Rimer LJJ: The habitual residence of the three older children had not changed from England since their habitual residence could not be changed by the unilateral action of one parent that is not consented to or acquiesced in by the other. The position was the same under European law: there was nothing to support a finding of an abandonment or change in the habitual residence of the older children where their mother who was responsible for their day to day care and control was detained in Pakistan against her will.
However the youngest child was not habitually resident here at the date of the English orders. Habitual residence is a question of fact, not a legal status attributable by legal concept. If there has been no residence here, there can be no habitual residence. Charles J in B v H (Habitual Residence: Wardship)  1FLR 388 disapproved. Patten LJ could not think of any case involving a child who was born and remains abroad where a finding of habitual residence in this country could be factually justified. The pressure to create a separate rule for newly born children should be resisted.
The orders of Peter Jackson and Parker JJ so far as the youngest child were concerned were made without jurisdiction and must be set aside. The judge could not be criticised for not ceding to the jurisdiction of the Pakistan court on the grounds that it was already seized. The forum conveniens point would be determined in a separate judgment following written submissions.
Dissenting: Thorpe LJ did not accept that a person who has never been physically present in a jurisdiction could not be habitually resident there. The child takes the mother's habitual residence at birth. Although the father had issued first in Pakistan, an abductor cannot trump summary return proceedings by obtaining a welfare based judgment where the children are wrongfully detained. Peter Jackson J had jurisdiction over all four children when he made the original without notice orders and nothing subsequently divested the judge of jurisdiction.
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