February 11, 2016
Source: The Bay Area Reporter
The first international same-sex parental abduction case could affect children’s and parental rights in regard to international laws, according to legal experts.
The case involves an unidentified British lesbian couple – one of Indian descent and the other of Pakistani descent – who had a daughter, then split up. Three years later the biological parent permanently moved to Pakistan with the couple’s daughter.
According to Family Law Week, the Supreme Court has allowed an appeal by the non-biological mother of the child, holding that the unilateral removal of the child to Pakistan by the biological mother did not cause the child to lose her English habitual residence, and that the English court retained full jurisdiction to make decisions about her welfare.
The ruling was 3-2 in the case, Re B (A Child)  UKSC 4.
The decision makes it possible for the non-biological mother to potentially order the girl’s return to the U.K.
The court’s decision is of particular importance because it strengthens a child’s rights not to be in legal limbo and it is a first step in addressing binational same-sex relationships that are on the rise, said legal experts.
The case is now going to be returned to the High Court for a judge to decide what happens next.
“The consequence of the Supreme Court’s decision is that the English court can properly consider what is in [the child’s] best interest and, if appropriate, order contact or [the child’s] return to England,” said Maria Wright, the non-biological mother’s attorney who is with Freemans Solicitors.
The non-biological mother expressed relief upon the court’s decision, according to media outlets.
“I very much hope that [the child] and I will now be able to see each other again,” she said.
However, it’s questionable if a Pakistani court will accept the case or even comply with a U.K. court’s order, said experts. Legal experts expressed concern over the child’s legal rights and being in legal “limbo,” reported the Daily Mail.
The couple conceived their daughter through in vitro fertilization in 2008. However, the couple’s relationship, which began in 2004 and was never legally recognized by a civil union, ended in 2011, according to court documents. Following the breakup and leading up to her departure to Pakistan, the biological mother began withdrawing from financial responsibilities and limiting visitation between the second mother and their daughter. Three years later the biological mother took the couple’s daughter to Pakistan, where same-sex relationships aren’t recognized, without informing the second parent, according to the court document.
Homosexuality is illegal in Pakistan under a colonial British-era law, Section 377, the same law that is currently being re-examined by neighboring India’s Supreme Court.
In 2014, the second mom launched a legal battle requesting that the judges order the girl returned to the U.K. However, the judges – a high court judge and court of appeal judges – ruled that the girl wasn’t habitually resident in the U.K. when the legal proceedings were launched, reported the paper.
The Supreme Court’s decision could prevent a child from being in legal limbo when one parent takes a child or children abroad and create a situation where they can change a child’s residency and circumvent legal proceedings.
“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 Irwin Mitchell.
Joanna Farrands, a partner at Barlow Robbins, praised the court’s decision.
“This is a fantastic outcome showing that the interest of the child must be the focus in international parental disputes,” she said. “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 U.K. they will not immediately lose their residence in England and Wales.”
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