Warning: filectime(): stat failed for /home/martiap4/public_html/clients2/cflp/error_log in /home/martiap4/public_html/clients2/cflp/wp-content/themes/salient-child/header.php on line 43

Brits abroad – how long is the law’s long arm?

The law reports this week are again peppered with cases where children are caught up in international disputes between their parents. As the world becomes ever smaller and we increasingly form relationships with partners from different backgrounds, different cultures and different countries, it sometimes seems that the law struggles to catch up. For us lawyers, it is interesting to watch the courts grappling with situations for which there is a lack of appropriate legislation, precedent or guidance. We know, however, that for those caught up in the maelstrom of uncertainty – parents and children – it can be very traumatic.

Over the last two days, the Supreme Court has been considering the future of a small child from an international background whose parents find themselves caught between laws. The case has been expedited for a hearing by the country’s highest court in recognition of the importance and complexity of the issues, and the necessity of a quick and final resolution for the child involved and her parents.

This little girl was the subject of a dispute between her birth mother and the mother’s lesbian partner after the end of their relationship. The girl, P, is now 7, and was conceived by donor insemination while the two women were together. The birth mother was always the primary carer, but the former partner took a role whenever she could; they lived together as a family. Unfortunately, the women separated and found it difficult to communicate. The time that P spent with her birth mother’s former partner gradually reduced, although the partner was trying to increase it.

The partner had been seeking shared residence of the child when she was taken to live in Pakistan in February 2014 by her birth mother without the former partner’s knowledge. The partner then asked the English court to make P a ward of court in order to secure her return to England, on the basis that P was a British national, or because the child was habitually resident in England at the time when she began proceedings under the Children Act.

Unfortunately for the partner, the court found that P was not habitually resident here at the relevant time for the English courts to be able to take action, and that the issue was not a sufficiently important circumstance for it to invoke its jurisdiction on the basis of P’s nationality alone, despite the likely negative impact on P of losing contact with a parent, because the bar for doing so is now set so high. You can read the report here.

So how would the partner ever see P again? The big problem that she faces if the English court can’t help her is that she is unlikely to make progress towards being reunited with the child through the courts in Pakistan because of her sexuality. The negative official attitude in Pakistan to gay and lesbian relationships means effectively that she will not have access to the legal system in that country. The President of the Family Division, in an earlier hearing of the case, recognised the widespread and pervasive discrimination perpetrated against homosexuals both by the Pakistani state and in society, and the prevalence of stigma, harassment and even violence against gay men and women. It is a crime to be gay in Pakistan. There is no law for her there, and on the basis of the current court decision, no law for her here either.

With this background, the Supreme Court will decide whether there is a way that the English court can help her; and then, if it can, whether it should. Two of the panel of five Supreme Court Justices hearing the case are family law specialists, and it will be fascinating to hear what they decide and their reasons for doing so.

The charity Reunite is intervening in the case in order to widen the debate. It is the leading UK charity specialising in the movement of children across international borders, and the principal children’s charity in the UK dealing with parental child abduction. It has excellent lawyers working pro bono (i.e. for free) on the case, who will be able to ensure that the quality of argument heard by the Supreme Court is of a standard to ensure they can make a fully-informed decision on where the law stands and how it impacts on this particular family.

This case brings to the fore a few technical legal issues about exactly what issues are important enough for our courts to intervene in the lives of British citizens who are resident overseas and primarily subject to the laws of other countries, and what priority our law gives to psychological/social parenting if there are no legal or biological ties but if the child has been part of a family that is now broken. It also throws up societal issues in a world where it is still illegal to be gay in 77 countries:

Screen Shot 2015-12-09 at 12.19.50

(Screenshot of BBC site taken at 1200 on 9 December 2015 – for the BBC’s map, click here). How far can and should the laws of one country step in to protect the rights of a citizen in another where there are different cultural mores, and a very different legal framework?

We wait with interest on the result. In the meantime, if there is any family law matter with which we can help you, international or otherwise, please do give us a call on 01223 443333 and make an appointment with Tricia, Adam, Sue, Simon or Gail.