London, Sept. 10: The Supreme Court — the highest court in the UK — today made what has been hailed as a very progressive landmark decision by applying ancient powers of “parens patriae” to protect a boy born in Pakistan of a British Pakistani mother.
The boy who has become involved in a tug of war between the quarrelling parents — two cousins who married 13 years ago and initially lived in England — has not been named for legal reasons but he will turn three next month.
The father, who wants to keep the boy back in Pakistan, initially won the backing of the High Court and the Appeal Court in Britain. They ruled against the mother who has returned to England from Pakistan, where she says she was “imprisoned” by her husband and his family, and wants her son to join her.
She now won the backing from the Supreme Court which has overturned the earlier rulings and resorted to the ancients powers of parens patriae to order the case to be reopened. A legal expert, Marilyn Stowe, a senior partner at Stowe Family Law, said that “on the face of it the child was not physically resident in the country and there was no jurisdiction to make the return order. The Supreme Court has made a brilliant and incisive decision in advising the use of the rarely used Crown’s ancient power of parens patriae, in order to protect the child, a British national”.
She added: “Parens patriae is very rarely used but it still appears to apply to this situation.”
Parens patriae is Latin for “father of his country”, the term for the doctrine that the government is the ultimate guardian of all people with a disability, especially children, whose care is only “entrusted” to their parents.
Under this doctrine, in a divorce action or a guardianship application the court retains jurisdiction until the child is 18 years old, and a judge may change custody, child support or other rulings affecting the child’s well-being, no matter what the parents may have agreed or the court previously decided.
The parens patriae doctrine has its roots in English Common Law. In feudal times various obligations and powers, collectively referred to as the “royal prerogative”, were reserved for the king. The king exercised these functions in his role of father of the country.
Basically, it is a doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.
In this case, both parents were of Pakistani origin. What often happens in cases where the husband is Pakistani or an Arab married to a white British wife is that he flees back to Pakistan or some Islamic state with the children who are then usually lost to the mother.
The effect of today’s Supreme Court decision to lay down a common sense interpretation of the law — if the mother is British the child is British and must be restored to the mother in Britain even if the child was born abroad.
In this particular case, as often happens with Pakistanis, the couple were cousins who married in Pakistan but set up home in the UK 13 years ago. They had 3 children. But when the marriage got into difficulty, the couple split, with the husband returning to Pakistan.
The woman went to Pakistan in October 2010 with her three children for what was meant to be a three week holiday but her stay “soon became involuntary”.
''The children were entered into local schools against her wishes and her husband removed her passport and the children’s passports,'' said Lord Justice Thorpe, one of five Supreme Court judges who have examined this case.
“The battle for survival intensified when in February 2010 she discovered she was pregnant,” he went on. “She resisted pressure for an abortion. She was threatened with death if she attempted to escape and was repeatedly beaten, threatened and abused by the husband and his
family. Her telephone was confiscated and she was not allowed out of the house unaccompanied.” “'By force, threats and coercion he prevented the mother from returning with the three children,” said the judge. “The mother was powerless to remedy the situation until she could escape from the prison that the father and his family had created for her.”
Elders intervened when her fourth child was born. In May 2011, the woman managed to find her passport and flew back to England but without any of her children.
Back in England, the Appeal Court judges said the three older children had been “habitually resident” in England and Wales and were therefore within the jurisdiction of its High Court. But they ruled in favour of the husband by finding that the boy born in Pakistan had not been habitually resident in England and Wales and was therefore not within the jurisdiction of the High Court.
But five Supreme Court justices disagreed – following a hearing in London – and ruled that the High Court of England and Wales had jurisdiction even though the boy was born in Pakistan. And they decided that the Crown retained an ancient power over those who owed allegiance as British nationals.