"Evidence from the proceedings to date indicates that whilst the courts have recognised the relation of T to the S’s as their ward in accordance with the foreign adoption and Mr. S’s sponsorship of the child and of Mrs. S, they have nevertheless emphasised at several points that she is not their biological child. As T's sponsor with legal and financial responsibility for her in the UAE he is the first choice as her guardian, provided he meets the conditions for guardianship specified in the aforementioned Articles 180 and 181 of the Personal Status Law. Whilst this is not affected by the position that T is an adopted child, the opinion that she has no natural parents has an impact on the entitlement to custody in accordance with the Shari’a, and consequently the Personal Status Law."
"In the Appeal Number 38/2014 Cassation (of which there are in the case file a draft and final ruling) the Court of Cassation has overturned the earlier rulings and awarded custody of the child to Mr. S. It bases this position primarily on Article 147 of the Personal Status Law asserting that this Article allows that “Should there be no party fit for custody, or no party accepting custody, the judge shall choose a male or female trusted relative of the minor under custody or others or may place the minor in a qualified institution.” [c168, para1] It goes on to say that Article 147 does not differentiate between male and female and claims that this quote leaves no room for the application of Article 144(2)(b). [C171] Article 147 does not explicitly state that the person appointed as custodian may be male or female, but provides that: ‘If there are no parents and custody is refused by those entitled to it the judge shall choose whomsoever he considers suitable from the relatives of the child, or non relatives, or one of the institutions qualified in this regard.’ The explanatory memorandum of the Article goes on to say: ‘If there is no person who is entitled to custody, or who accepts custody, the judge shall choose a person he trusts, man or women, of the relatives of the child or others, or shall place him/her with one of the institutions qualified in this regard. This ruling is based on the Hanafi School.’ This Cassation ruling is, on the face of it, an unusual application of the law. Islamic law and the UAE Personal Status Law do not allow a man to have custody of a child who is not in the categories of relationship to him that prohibit marriage between them. The law states categorically that for a man to have custody he must, 'be of a degree of relationship to the child that makes marriage between them unlawful if it is a girl.' [Law 28.2005, Article 144(2)(b)] It goes on to say: ‘In all cases there shall be no entitlement to custody where there is a difference of sex for a person who is not prohibited in marriage by degree of relationship to the child whether male or female.’ [Law 28.2005, Article 146(5)] It seems incongruous that the broad provision of Article 147 should override some of the fundamental qualifications required in a custodian, as defined in Articles 143 - 146 of the Personal Status Law. It would be expected that the person whom the judge considers suitable should be chosen from amongst those who meet the qualifications or, in other words, by definition the criteria for 'suitability' should be those listed as the qualifications for custody. What is clear, however, is by this literal application of Article 147 and its explanatory memorandum the Court of Cassation has taken the strict position that Mr. and Mrs. Sare not T's parents, as according to the letter of the Article this provision applies only where there are no parents."
"The issues for the court's determination at the next hearing shall be (subject to the trial judges determination), (a) finding of fact and determination of jurisdiction. The remaining issues for adjudication will include, (b) any welfare issues arising from any confirmation of jurisdiction."
"[60] We have already established that the prohibition in section 2 of the 1986 Act does not apply to the orders made in this case. The common law rules as to the inherent jurisdiction of the High Court continue to apply. There is no doubt that this jurisdiction can be exercised if the child is a British national. The original basis of the jurisdiction was that the child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was. As Lord Cranworth LC explained in Hope v Hope (1854) 4 De GM & G 328, at 344-345: "
"The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see Hope v Hope (1854) 4 De GM & G 328; In re Willoughby(1885) 30 Ch D 324 ; R v Sandbach Justices, ex p Smith[1951] 1 KB 62 ."
"[64] Mr Setright, with the able assistance of Mr Manjit Gill QC, has raised a number of important general considerations which may militate against its exercise. It is inconsistent with and potentially disruptive of the modern trend towards habitual residence as the principal basis of jurisdiction; it may encourage conflicting orders in competing jurisdictions; using it to order the child to come here may disrupt the scheme of the 1986 Act by enabling the child's future to be decided in a country other than that where he or she is habitually resident. In a completely different context, there are also rules of public international law for determining which is the effective nationality where a person holds dual nationality. [65] All of these are reasons for, as Thorpe LJ put it in Al Habtoor v Fotheringham[2001] 1 FLR 951 , para.42, 'extreme circumspection' in deciding to exercise the jurisdiction. But all must depend upon the circumstances of the particular case."
"[45] In our judgment, the use of the inherent jurisdiction in cases where the child is outside the jurisdiction remains subject to the long-established and consistent jurisprudence. Various words have been used down the years to describe the kind of circumstances in which it may be appropriate to make an order – “only under extraordinary circumstances”, “the rarest possible thing”, “very unusual”, “really exceptional”, “dire and exceptional”, “at the very extreme end of the spectrum.” The jurisdiction, it has been said, must be exercised “sparingly”, with “great caution” (the phrase used by Lord Hughes JSC in A v A, § 70(v)) and with “extreme circumspection.” We quote these words not because they or any of them are definitive – they are not – but because, taken together, they indicate very clearly just how limited the occasions will be when there can properly be recourse to the jurisdiction.[46] Moreover, and as we have already explained, those occasions will in modern times be even more limited than previously, given, first, the effect of the 1986 Act and, secondly, the other recent developments noted by Thorpe LJ and Baroness Hale. The importance of the 1986 Act in limiting recourse to the inherent jurisdiction is plain. In our judgment, the analysis of Ward J in F v S (Wardship: Jurisdiction)[1991] 2 FLR 349 , and his warning against using a return order as an artificial device to found jurisdiction, are as valid now as then, and remain unaffected by anything said in A v A."
"[52] Overall, unsatisfactorily general though the evidence is, we are prepared to proceed on the basis that it is very unlikely that the courts in Pakistan would be prepared to recognise the appellant as having any relationship with P that would entitle her to relief. She could hardly hope to demonstrate the necessary kind of parental, or in any event familial, relationship with P unless she were tolerably frank about the nature of her relationship with the respondent. But in that case, even if the Court evinced no actual hostility to the appellant, the evidence about societal attitudes strongly suggests that her consequent relationship with P would not be recognised as one which justified any legal protection. Thus, while we need reach no conclusion about the alleged “risks to all concerned”, what matters is that the appellant will have no realistic opportunity to advance her claim in the Pakistani courts.[53] However, in our judgment that state of affairs is not by itself enough to justify the intervention of the English court. The fact that local judicial processes are, to our perception, inadequate does not in any way lessen the difficulties about seeking to invoke the inherent jurisdiction when a child is abroad. As a matter of principle, such a claim to jurisdiction sits most uncomfortably not merely with the long-established jurisprudence but more particularly with the provisions of section 1(1)(d)(i) of the 1986 Act and the decisions in Al Habtoor v Fotheringham[2001] EWCA Civ 186 ,[2001] 1 FLR 951 , and Re N (Abduction: Appeal)[2012] EWCA Civ 1086 ,[2013] 1 FLR 457 . We would not wish to lay down any rigid boundaries for the exercise of the jurisdiction; all must depend, as always, on the circumstances of the particular case. However, we are satisfied that the present case does not approach the very high threshold necessary to justify the exercise of the jurisdiction. We are very willing to accept that the attenuation or even – if this is, regrettably, what happens – the ultimate loss of her relationship with the appellant will be a real detriment to P, quite apart from being a great grief to the appellant herself. But it has to be recognised that the respondent has always been P’s primary carer, that the appellant had not been part of the household for some time before P and the respondent left for Pakistan and that the appellant has never even in this country had any legal parental rights. The situation falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction."