Loss of Habitual Residence: Legal Limbo and the Modern Law

United Kingdom Immigration Law Blog

In Re B (A Child) [2016] UKSC 4 (3 February 2016)

Perhaps facts never get more interesting than they are in this case. Then again, neither do laws. Under section 377 of the Pakistan Penal Code (Act XLV of 1860), “carnal intercourse against the order of nature with any man, woman or animal” constitutes an “unnatural offence” and “penetration is sufficient to constitute the carnal intercourse necessary to the offence.” The origins of this crime, authored by Lord Macaulay, are clearly rooted in the vestiges of British imperialism and the maximum punishment is life imprisonment but lesser sentences/fines may be imposed instead. “The absence of habitual residence anywhere places a child in a legal limbo,” remained Lord Wilson’s point of departure in this case about two British women in a same-sex relationship who used an unknown sperm donor of Asian ethnicity and had a daughter known as “B”…

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