WALES/ENGLAND – The Supreme Court grants permission to appeal one High Court and one Court of Appeal decision

Via the Supreme Court website, it has been confirmed that Ms Hodkin (the appellant in R (on the application of Hodkin and another) v Registrar-General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin)) has been granted permission to appeal the High Court’s decision to dismiss her appeal. You will recall that the case concerns whether or not a Church of Scientology chapel can be registered as a place of worship for religious worship; the High Court’s decision that such a chapel could not be registered meant that, in turn, it could not be considered a registered building for the purpose of the solemnisation of marriages.

You can read the High Court’s judgment, together with a case comment here. The Supreme Court hearing will take place on 18 July 2013.

On the grapevine, we have heard that ZA & Anor v NA [2012] EWCA Civ 1396 is also destined to head to the Supreme Court. This case involved determining the habitual residence of four siblings, three of whom were born in England and the youngest of whom was born in Pakistan. The mother had taken the three elder children to Pakistan on holiday; however, the mother’s stay in Pakistan quickly became involuntary, resulting in her giving birth to the fourth child there. She managed to escape, and return to England, leaving the four children behind; she promptly began proceedings to have the children returned to England.

At first instance, a return order was made requiring all four children to be returned to this jurisdiction. In respect of the youngest child, the High Court relied upon the decision of Mr Justice Charles in B v H which provides authority (although admittedly the only authority in this jurisdiction) for holding that a child can be habitually resident in a country in which they have never actually physically been present.

The father appealed the return order, arguing in particular that the court had been wrong in law to find that the youngest child’s habitual residence was England and Wales; the Court of Appeal (on a 2:1 majority verdict – Lord Justice Thorpe dissented) upheld the return order in respect of the three children born in England but overturned it in respect of the child born in Pakistan.

The High Court held that physical presence was an essential ingredient of habitual residence and that accordingly the decision of B v H was wrong.

Rumour has it that the Supreme Court sees this as an opportunity of getting to grips with habitual residence, with a possible review of the body of law on the cards. As they say, watch this space for further news . . .


SOURCE: Family Law Hub

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