ZA & Anor v NA

ZA & Anor v NA

The three older children remained habitually resident in England and Wales as their removal and retention in Pakistan was against the will of the custodial parent and did not change their habitual residence. However, the youngest child, H, born and always resident in Pakistan, could not be habitually resident in England and Wales without ever being present there. The High Court had no jurisdiction over H, and the orders relating to him must be set aside. The orders for the older children stand.

Parties
Appellant: ZA; Appellant: PA; Respondent: NA
Jurisdiction
England and Wales
Judgment Date
26 October 2012
Procedural Posture
Civil Appeal (family Law) / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal allowed in part; orders relating to H set aside; orders relating to the three older children upheld; extension of time and permission to appeal granted; further submissions invited on forum conveniens.
Legal Topics
Habitual Residence, Child Abduction, Jurisdiction, Wardship, Comity, Forum Non Conveniens
Family Law Private International Law Habitual Residence Child Abduction Jurisdiction Wardship Comity Forum Non Conveniens

Case Brief

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Parties

ZA

Appellant

PA

Appellant

NA

Respondent

Procedural Posture

Civil Appeal (family Law) / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether the English court had jurisdiction over four children for return orders based on habitual residence
  2. 2 Whether a child born abroad can be habitually resident in England without ever being present there
  3. 3 Whether the High Court should have declined jurisdiction in favour of Pakistan under principles of comity or the Pakistan Protocol

Ratio Decidendi

The three older children remained habitually resident in England and Wales as their removal and retention in Pakistan was against the will of the custodial parent and did not change their habitual residence. However, the youngest child, H, born and always resident in Pakistan, could not be habitually resident in England and Wales without ever being present there. The High Court had no jurisdiction over H, and the orders relating to him must be set aside. The orders for the older children stand.

Court Disposition

Appeal allowed in part; orders relating to H set aside; orders relating to the three older children upheld; extension of time and permission to appeal granted; further submissions invited on forum conveniens.

Orders

  • Orders relating to H (the youngest child) set aside for lack of jurisdiction.
  • Orders for return of the three older children upheld.