Her Majesty’s Passport Office’s position was that consent was required from a person with parental responsibility for the child.
Under the 1996 Hague Convention, parental responsibility is determined by the law of the country where the children are habitually resident. In this case, the children were born and habitually reside in a country (Country X) that gives sole parental responsibility to the father, while the mother’s consent is irrelevant. By contrast, in the UK the mother automatically has parental responsibility for the child from birth.
In the High Court, the claimants successfully established that the Passport Office’s decision was vitiated by a public law error of irrationality. There was no rational evidence for concluding that the father had to consent to the passport applications in this case. Chamberlain J went further and discussed the potential scenario when there is no signed consent for the children’s travel from the father. In his opinion, Article 22 of the 1996 Convention permits local law to be ignored if doing so would be manifestly contrary to public policy. In considering this, Chamberlain J took into account the children’s best interests.
Further, Chamberlain J found that the Passport Office’s application of Country X’s law on parental responsibility constitutes direct discrimination against GA on grounds of her sex, which is contrary to Article 14 read with Article 8 of European Convention on Human Rights and cannot be justified as proportionate.
It is not clear at this stage whether the Passport Office will be applying for permission to appeal to the Supreme Court.
Provided that the decision is not subsequently overturned by the Supreme Court, the judgement will be beneficial for women seeking British passports for their children without abusive fathers’ consent.
Gherson has extensive experience of assisting clients with passport applications. In the event that you would like to discuss the possibility of making such an application, please do not hesitate to contact us for advice, send us an e-mail, or alternatively, follow us on Twitter, Facebook, or LinkedIn to stay-up-to-date.
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