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

This is an appeal against an order by Lieven J on the application of a local authority for the return to this country of a young child, J, now aged 9 months, who is currently in Thailand. The appeal is brought by the child’s father with the support of her mother.

At the conclusion of the hearing, we informed the parties that the appeal would be dismissed, for reasons to be given at a later date. This judgment sets out my reasons for agreeing with that decision.

I take the following summary of the background facts substantially from Lieven J’s judgment.

J’s parents have had very significant involvement with children’s social care over many years. Between 2005 and 2018, the mother had five previous children taken into care. The father also has children with whom he has no relationship. The parents’ long-standing problems include poor mental health, alcohol and substance misuse, association with risky individuals, criminality and domestic abuse, all of which have been found by the courts to impact upon their ability to ensure the safety and welfare of children in their care.

The parents started a relationship in 2019. In 2023, the mother gave birth to her sixth child, the father’s fourth. In April 2024, he was made subject to care and placement orders and was subsequently adopted. Also in April 2024, the parents were arrested for robbery. In June 2024, a test at her GP’s surgery revealed that the mother was pregnant again, with an estimated delivery date of 9 January 2025. The GP informed children’s services about the pregnancy.

On 16 September 2024, when the mother was twenty-four weeks pregnant, the parents travelled to Thailand, with the aim, as now accepted on their behalf, of avoiding the removal of their baby at birth. When the local authority became aware of their departure, it was decided to close the case but to re-open it in the event that the parents returned to England. The Thai authorities were notified of the risks and a marker was placed on the parents’ passports so that the UK authorities would be notified if the parents booked a return flight.

On 26 December 2024, the mother gave birth to J in Thailand. On 9 January 2025, the police in England were informed that the mother had given birth to J, but at that stage the information was not passed on to the local authority.

On 11 June 2025 the police received notification that the parents had a flight booked returning to Manchester on 12 June 2025. When the parents arrived, they were arrested for concealing the birth of a child. At first the mother maintained that she had miscarried before travelling to Thailand. During police interviews, however, they confirmed that J had been born. They told the police that they had returned to the UK to renew their visas and had left the baby with friends, X and Y, in Thailand. They were released on bail subject to conditions including that they should not leave the country.

In a joint meeting with the police and social workers on 16 June, the parents provided further details of the people with whom they had left the baby. During the meeting, the social worker was concerned that the father was under the influence of substances. A video call was arranged between the social worker, the parents and X and Y. The social worker was concerned that the man, X, seemed intoxicated. He showed the social worker a baby, whom the local authority accepts was J. She seemed well, healthy, and appropriately dressed. The house where she was apparently living appeared clean and tidy. On 18 June 2025, the local authority was supplied with a copy of J’s birth certificate, which wrongly stated that she was the mother’s first child.

On 19 June, the local authority filed an application in form C66 stating: “The local authority is applying to the court to invoke the inherent jurisdiction to make J a ward of court, to make an order for the return of J to the United Kingdom and an order permitting the local authority to seize the parents’ passports. The local authority is also seeking leave of the court to make the application ex parte.” In a statement in support, the allocated social worker stated that the local authority was seeking the child’s return “as a result of her being habitually resident in the UK jurisdiction”. She added

“In the alternative, if the court is not satisfied that J is habitually resident in England & Wales, she is a British citizen and therefore the court would have the power to make an return order under the inherent jurisdiction of the High Court, and the local authority in those circumstances would seek the court’s permission to invoke the inherent jurisdiction of the High Court on the basis that there is no other statutory [instrument] that could be utilised to facilitate J’s safe return, for the following reasons:-

a.

There is no one exercising parental responsibility for [the child] in Thailand.

b.

J’s circumstances in Thailand are very difficult to evaluate.

c.

J’s parents will reside in the UK for at least the short term; and

d.

Therefore, a holistic evaluation of J’s welfare is better placed to take place in the UK.”

On 20 June 2025, at a hearing before HH Judge Pates sitting as a deputy High Court judge without notice to the parents, the local authority applied for, and was granted, an order making J a ward of court and a passport order in respect of the parents’ passports. Case management directions were given for a substantive hearing on the application for a return order.

On 23 June 2025 the local authority was informed by the Foreign, Commonwealth & Development Office (“FCDO”) that the address the parents had given for X and Y was insufficiently specific for the property to be identified and that the British Embassy was liaising with the Thai authorities about what steps they would take in respect of the baby. On 25 June, the FCDO informed the local authority that the Thai authorities were willing to assist in returning J to this country, provided correct details of her whereabouts were divulged.

On 26 June 2025 X contacted the local authority and said that J was no longer in their care because they had only agreed to look after her for ten to twelve days. He said that she was now with a friend of the father. In statements filed in these proceedings, the parents stated that J had moved to a childcare facility or orphanage during the week and was spending weekends with X and Y.

At a further hearing before Gwynneth Knowles J on 2 July, the parents were ordered to undergo drug testing and file a report by 11 July 2025. That order was not complied with.

On 3 July, Thai Social Services carried out a visit to J. They reported that she was well and meeting her developmental milestones. There appeared to be no concern about her day-to-day care.

In a further statement, the allocated social worker stated that the local authority had applied for an emergency travel document from the FCDO to facilitate J’s return and that, if a return order was made, two social workers would travel to Thailand to collect her. The local authority would then issue public law proceedings with a view to a court hearing being listed on the day J was due to land in England.

The hearing took place before Lieven J on 7 August. Judgment was reserved and handed down on 15 August. I shall consider the judgment in greater detail below. At this stage, I merely state that the judge recorded that the parties were agreed that the court had the power under the inherent jurisdiction to make the order sought by the local authority and, after summarising the case law which I also consider below and the parties’ respective submissions, concluded that in the circumstances she should order the return of the child to this country.

The order made following the hearing included a recital in these terms:

“There is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child she is likely to suffer significant harm for the following reasons:

(i)

The parents fled the United Kingdom whilst the child was in utero in order to avoid the involvement of Children’s Services, the Court having previously found that the parents posed a significant risk of harm to the older children due to drug and alcohol misuse issues, poor mental health and neglect. The parents were not deemed safe carers;

(ii)

J is currently in Thailand with no persons present with parental responsibility for her, her parents having returned to the United Kingdom without her;

(iii)

There is a risk that the parents and J’s carers may attempt to frustrate any efforts by Thai or British professionals to safeguard [the child’s] welfare and/or to have her returned to the United Kingdom.”

In a further recital, it was recorded that the local authority confirmed its intention to issue care proceedings on the child’s return to the jurisdiction. The order recorded that the Court respectfully requested the Thai authorities to assist in taking any steps which may to them appear necessary and appropriate in facilitating the child’s immediate return to England and Wales. Paragraph 1 of the order provided that J “is and shall remain a ward of court until further order”. Under paragraph 4, the parents were ordered to ensure that J be returned to this jurisdiction by no later than 22 August 2025. Paragraph 5 granted permission to the local authority to send two social workers to Thailand to travel with the child to this country. Paragraph 6 imposed certain obligations on the local authority to take steps to facilitate the child’s return (obtaining an emergency travel document, any necessary consents, purchasing flights etc.) Paragraph 8 provided that the proceedings would be listed within 72 hours of the child’s return. A separate order extended the existing passport order on amended terms.

On 18 August 2025, the father filed a notice of appeal against the return order. Two grounds of appeal were advanced, which are considered in detail below. In short, it was asserted that the judge had failed properly to apply the principles set out in case law and secondly that she 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 and make a return order. On 21 August, King LJ stayed the order of 15 August pending determination of the application for permission to appeal. On 5 September, I granted permission to appeal and extended the stay until the determination of the appeal or further order.

J remains in Thailand, spending most of her time in the childcare facility. It is significant to note that the Thai authorities have made clear that they do not intend to start proceedings in that jurisdiction and that they will assist the local authority in arranging for J to travel to England.