You might know the Bible story about two young women who lived in the same house, each with a baby son. While sleeping, one of the infants was accidentally smothered and died. Both women claimed to be the mother of the surviving boy.
King Solomon declared that the child should be split in two, so that each woman could receive half. The boy’s true mother cried out: “Lord, give the baby to her, just don’t kill him.”
This judgement is often quoted as an example of profound wisdom.
(Source: 1 Kings 3:16-28).
The expressions ‘splitting the baby’ or ‘cutting the baby in half’ are sometimes used in the legal profession for solutions which split the difference in damage awards, or divide fault between the two parties in comparative negligence cases.
You might also have seen a recent story in the media that contains some parallels.
Seven years ago, a lesbian couple had a daughter who was conceived by IVF treatment.
In 2011, their relationship broke down, and in early 2014, the biological mother and sole legal parent took the girl to Pakistan.
However, the other woman considers herself a de facto parent, and launched legal action asking judges to order the youngster’s return to the UK.
Because the girl was not habitually resident in the UK when legal proceedings were launched, the High Court judge, and Court of Appeal judges, concluded that they did not have the jurisdiction to make such an order.
The other mother was concerned that she would lose all contact with the child, and five supreme court justices analysed the evidence at a hearing in London in December. They overturned the original decisions and ruled that the girl had been habitually resident in the UK, and so there are grounds for appeal.
This brings welcome clarity to the law regarding a child’s habitual residence.
The case will now return to the High Court. A judge in England will now consider what is in the child’s best interests, and, if appropriate, order contact or the child’s return to England.
Family law cases are almost always complex, King Solomon is no longer around, and it’s important to take legal advice.
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