CA-2025-002052 - [2025] EWCA Civ 1309

The appellant father’s case on appeal was presented by Mr Matthew Rees KC leading Mr Callum Brook. As noted above, two grounds of appeal were put forward.

Under ground 1, it was said that the judge failed to properly apply the principles set out in Re M and Re D by:

It should be noted, however, that Mr Rees accepted before the judge, and before us, that a local authority could obtain a return order under the inherent jurisdiction where the grounds were child protection, with the intention of issuing public law proceedings once the child was returned, albeit only in a case “at the very high end of the spectrum of concern”.

Under ground 2, it was contended that the judge was wrong to conclude that the facts and presenting concerns gave rise to sufficiently compelling circumstances to permit the Court to exercise its inherent jurisdiction. In particular, she

The appeal was supported on behalf of the mother by Mr Karl Rowley KC and Mr Nicholas Sefton. They did not endorse the appellant’s argument that the effect of Lieven J’s order was to place the child in the local authority’s care. They did submit, however, that the driving force behind the order was to facilitate a welfare enquiry and that, in the light of Re M and Re D, this purpose was contrary to the statutory scheme. They submitted that there was no evidence that J was suffering harm nor sufficient evidence that the previous concerns about the parents’ conduct and care of the older children gave rise to any current risk to J. Overall, the concerns relied on by the local authority did not satisfy the test of “sufficiently compelling circumstances” upon which to sanction the removal of a child from the country where she has spent her whole life.

On behalf of the local authority, it was argued by Ms Kate Burnell KC and Ms Nicola Brown that the judge properly directed herself as to the legal principles and applied with care the need to exercise caution or circumspection. Ms Burnell submitted that Moylan LJ in Re M had been clear that the jurisdiction was being used to subvert Parliament’s intention in the circumstances of that case. The judge in the present case had been entitled to conclude that it was one where there was no “bright line”, as Moylan LJ identified, and was one where the order sought by the local authority did not conflict with the limitations imposed by the 1986 Act. Ms Burnell contended that it could not be correct that the existence of the residual protective jurisdiction of the High Court would turn upon whether the local authority intends to issue care proceedings once the child was present in England and Wales. The primary purpose of the local authority’s application in this case was to seek to exercise a protective duty towards J as a British national, in the context where she had been effectively abandoned in Thailand with no person exercising parental responsibility for her and was now living in what was, in effect, a children’s home. In respect of ground 2, Ms Burnell submitted that the judge, applying the correct test, had carried out the necessary evaluation of the relevant factors for and against exercising the jurisdiction, that she was entitled to conclude that the circumstances were sufficiently compelling to justify making the order, and that this Court should not interfere with that evaluation.

On behalf of the guardian, Ms Ruth Kirby KC leading Mr Jonathan Rustin submitted that, on the binding authority of A v A, the parens patriae jurisdiction can be exercised to make a return order in respect of a British child abroad who is not habitually resident in England. The jurisdiction is based on the Crown’s obligation to protect its British citizens abroad where the circumstances of that citizen are, per Moylan LJ in Re M, sufficiently compelling. Such orders are not forbidden by any of the relevant provisions of the FLA 1986. Observations that such orders cannot be made where the intention is that on the child’s return the local authority will take proceedings under Part IV of the Children Act are misconceived, based as they are on Lord Sumption’s obiter comments in his dissenting judgment in Re B. This places an unnecessary restriction on the simple order to return or to convey a British citizen in need of protection which the Supreme Court has confirmed as being a permissible use of the jurisdiction. Ms Kirby cited authorities in which, she asserted, return orders had been made under the inherent jurisdiction notwithstanding the fact that further proceedings were plainly contemplated – see, for example, Re M (Children) [2015] EWHC 1433 (Fam) (Sir James Munby P) and, most recently, M v U & Anor (Rev1) [2025] EWHC 1821 (Fam) (MacDonald J). Ms Kirby went so far as to submit that the reference by Moylan LJ at paragraph 107 of Re M, to the need for sufficiently compelling circumstances being supported by the requirement to avoid cutting across the statutory scheme of the FLA 1986, was contrary to the principles identified by the Supreme Court.

Ms Kirby submitted, however, that Lieven J’s summary of the applicable principles at paragraph 55 of her judgment was correct. Having done so, she then applied the principles to the facts of the case in a paradigmatic way which could not be challenged in this Court.

The inherent jurisdiction continues to play an important role in our family justice system. The primary purpose for exercising the jurisdiction is to provide protection to children where their welfare requires it. Because of its historic parens patriae origins, it extends to all children who are British subjects wherever they may be. In the modern era, they are scattered all over the world.

There are significant limits on the jurisdiction. These include those imposed by sections 1(1)(d), 2(2) and 3(1) of the FLA 1986. But these only extend to those orders defined in section 1(1)(d) – giving care of a child to any person or providing for contact with, or the education of, a child. There are many other orders made under the jurisdiction which are not subject to the FLA 1986 restrictions. As noted above, they do not apply to public law orders. In Re R, supra, Singer J considered the use of the word “person” in section 1(1)(d). He concluded (page 712H):

“‘Person’ in this context, it seems clear to me, means a human individual rather than a corporation such as a local authority, so that Part I orders under the 1986 Act are firmly pointing their face away from the public law jurisdiction of the 1989 Act under Part IV.”

There are also limits imposed by the 1996 Hague Convention. As explained, however, in the Hackney case at [55]-[58], when no Contracting State has substantive jurisdiction (articles 5 and 6), the 1996 Convention does not inhibit national courts from exercising the broader bases for jurisdiction that the Contracting States might attribute to their authorities in application of their national law (such as the inherent jurisdiction of the High Court), but other Contracting States are not bound to recognise these broadened bases for jurisdiction which fall outside of the scope of the Convention.

There are also significant limits on a local authority’s power to invoke the inherent jurisdiction imposed by section 100 of the 1989 Act. It cannot ask the High Court to make an order under the inherent jurisdiction placing the child in its care or allowing it to accommodate a child. It cannot ask the court to make a child who is subject to a care order a ward of court. It cannot obtain an order giving it the power to determine any question relating to any aspect of parental responsibility. It cannot invoke the jurisdiction without the court’s leave. Leave cannot be granted if the local authority could obtain the result it seeks via another legal route. And it cannot be granted unless the local authority can demonstrate that without an order the child would be likely to suffer significant harm.

But these restrictions leave open a range of circumstances in which a local authority is not constrained from seeking to invoke the jurisdiction. Those circumstances include a case, when the 1996 Convention does not apply (as explained above), where a child who is a British national is habitually resident or present in a foreign country and is at risk of significant harm. There is no other remedy available to a local authority in these circumstances. Section 50 of the 1989 Act empowers the family court to make a “recovery order” in respect of a child who is subject to a care order or emergency protection order or police protection and has been unlawfully taken away or is being unlawfully kept away. It does not apply to children who are not subject to a care order or emergency protection order or police protection. Furthermore, as noted by Bodey J in Lewisham London Borough Council v D (Criteria of Territorial Jurisdiction in Public Law Proceedings) at paragraph 30, the terms in which section 50 is drafted make it clear that such an order can only be made in respect of a child who is present in the jurisdiction.

The reason why the local authority is seeking to invoke the jurisdiction is to protect the child from significant harm. That is the very essence of the parens patriae jurisdiction. The hurdle for invoking the jurisdiction is high because, as explained by Baroness Hale and Lord Toulson in Re B, at [59], there are reasons why the court should “approach the use of the jurisdiction with great caution or circumspection”. However, as they went on to say, at [60], the “real question is whether the circumstances are such that this British child requires that protection”. In short, as Moylan LJ said in Re M, at [105] “there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction”.

So much is clear from the authorities. It is unfortunately the case, however, that some uncertainty and confusion has arisen through the references in obiter dicta in Re B to “subvert[ing] Parliament’s intention” (Lord Wilson) and “cut[ting] across the statutory scheme” (Lord Sumption) and the subsequent application of those phrases by Moylan L J in Re M. The uncertainty and confusion are evident in some of the submissions in the present case and, possibly, the judgment of Henke J in Re D. I venture to suggest it may therefore be necessary to reconsider those observations in due course. This judgment is not, however, the appropriate place for such reconsideration because, as explained above, the present case is outside the ambit of the FLA 1986.

In my view the fact that, after the return of J to this country following an order under the inherent jurisdiction, the local authority intends to start proceedings under Part IV of the 1989 Act is irrelevant to any decision whether or not to exercise the jurisdiction. The purpose of seeking an order for the return of J Thailand is not (as this Court held on the facts in Re M and Henke J held in Re D) to confer on the English courts a jurisdiction to make orders which would not otherwise be available. It is, rather, simply to protect the child from significant harm. In Re D, Henke J concluded that the reason for the local authority seeking that case to invoke the inherent jurisdiction for the return of the child was “so that they could exercise a statutory duty to safeguard and protect and so that public law proceedings could begin in relation to her.” The facts of that case were very different to those in the present appeal and I express no view as to whether Henke J’s assessment was correct. I do not read her judgment as advancing as a general proposition that a local authority cannot invoke the inherent jurisdiction to secure the return of the child if it intends thereafter to take care proceedings which the court could not otherwise entertain. If, however, she was holding that in such circumstances inherent jurisdiction can never be invoked because it “cuts across the statutory scheme”, I would respectfully disagree.

In the present case, the purpose of the local authority’s application for J’s return is simply to secure the protection of the child to which she is entitled as a British national. The fact that the local authority intends thereafter to start proceedings under Part IV of the 1989 Act does not invalidate the application.

The fact that the order provided for the local authority’s social workers to travel to Thailand to collect J does not in my view add any weight to the appellant’s contention that the order was an improper use of the inherent jurisdiction. The same applies to the fact that the order provides for a hearing to be listed within 72 hours of her return, from which it is inferred that the court was approving the plan that, in the hours between her arrival in the country and that hearing, J will be accommodated by the local authority. These paragraphs in the order are simply and sensibly making practical arrangements to facilitate the exercise of the court’s protective jurisdiction. They are not, in my view, a breach of section 100 or any other restriction on the use of the inherent jurisdiction.

One feature of the case is that, so far as I can see, none of the orders made by the High Court – the initial order by HHJ Pates, the case management order by Gwynneth Knowles J, or the final order by Lieven J – records in terms that the local authority was granted permission under section 100 to apply under the inherent jurisdiction. In her skeleton argument, Ms Burnell asserted that permission was granted, but I cannot see any specific order to that effect. No other party contradicted Ms Burnell’s assertion, and there is nothing in the documents to indicate that the parents argued that the local authority should not be granted leave. In the order under appeal, Lieven J recorded that the court was satisfied that there was reasonable cause to believe that if the inherent jurisdiction was not exercised she was likely to suffer significant harm for reasons particularised in the order (and set out above at paragraph 18 above). It is to my mind clear that this recital was included to demonstrate that Lieven J was satisfied that the local authority was entitled to be granted leave. It is true that there is no specific reference to whether the result could be achieved by any other order (as required by section 100(4)(a)) but it is plain that no alternative order was available and no one has suggested otherwise.

It follows that I reject the submission that Lieven J failed to apply the relevant legal principles in the ways asserted by the appellant or at all. I would therefore dismiss the first ground of appeal.

I can deal with the second ground of appeal very briefly. It was plainly open to Lieven J on the evidence to conclude that the circumstances were sufficiently compelling to justify making the order. She was acutely aware of the need for “great circumspection”. She carefully identified and elucidated the factors for and against making the order, and explained her reasons for her conclusion. In the absence of some error of principle or misunderstanding of the facts, a judge’s decision about the facts should not be overturned unless the judge has reached a conclusion that no judge could reasonably have reached: per Lewison LJ in Volpi v Volpi and another [2022] EWCA Civ 464, paragraph 2. Lieven J caried out an impeccable analysis of the facts and it would be wholly wrong for this Court to interfere with her conclusion. There was no error of principle, nor any misunderstanding of the facts. It was plainly open to her to reach her conclusion. I would go further and state that, on the evidence put before her, her conclusion was correct.

For those reasons, I would dismiss the appeal.

I agree, and would also endorse the additional observations made by Moylan LJ below.

I also agree with Baker LJ’s judgment but I add a few comments of my own in respect of Re M. As referred to by Baker LJ, the submissions in this case on behalf of the parents placed significant reliance on certain observations of mine in Re M. In response, these led Ms Kirby to submit that, in particular my reference at [107] to what Lord Sumption had said about cutting across the statutory scheme, was inapt and contrary to the principles identified by the Supreme Court.

I agree with Baker LJ that the submissions in this case have raised legitimate questions about those observations. I also agree that this judgment is not the appropriate place for detailed reconsideration because the present case is outside the ambit of the FLA 1986. However, it seems clear that these observations have been given a weight and significance that they do not warrant. This has been demonstrated in the present case because the court’s jurisdiction in respect of public law proceedings and the use of the inherent jurisdiction by local authorities as circumscribed by section 100 of the Children Act do not conflict but support or complement each other. It is also clear, as explained in Hackney and as referred to by Baker LJ in paragraph 81 above, that when no Contracting State has substantive jurisdiction (articles 5 and 6), the exercise by a national court of jurisdiction based on other domestic rules does not conflict with the jurisdictional rules in the 1996 Convention. I would, therefore, suggest that in future references to Re M should focus on the ratio of the decision, at [105] as quoted above), and not on these other observations.