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

Having set out the facts, Lieven J summarised the appellate authorities cited above. After quoting paragraph 105 of Moylan LJ’s judgment in Re M (“there must be circumstances which are sufficiently compelling”), she said that this was the test that she intended to apply. After quoting paragraph 137 of the judgment in Re M, she observed (paragraph 50):

“As I have set out above, in both A v A and Re B the Supreme Court had the provisions of the Family Law Act 1986 carefully in mind in reaching their conclusions about the use of the inherent jurisdiction. As Moylan LJ acknowledges, there may well not be a bright line, and to some degree it is inevitable that the exercise of the inherent jurisdiction in these circumstances will cut across the 1986 Act. However, binding authority from the Supreme Court says that the jurisdiction continues to exist.”

The judge then cited paragraphs 96-97 of Henke J’s judgment in Re D, on which the parents’ representatives had heavily relied, and observed (paragraphs 53-54):

“53.

…. it is not disputed that the jurisdiction to make a return order exists. After that, whether the jurisdiction is exercised must depend on the facts of the particular case. Henke J’s reasoning depended on the facts of the case.

54.

I do not accept that the facts of Re D were analogous to the present ones. The risk to the child came primarily from the father, and he was in the UK not in Iraq. The risks in Iraq were merely those of being in a highly unstable country with considerable challenges, nothing specific to the child. The issues in the present case are entirely different and relate entirely to the child being left in the care of her parents, where there is considerable evidence suggesting that they pose a risk to a young and vulnerable child.”

Drawing the threads of the case law together, Lieven J concluded (paragraph 55):

“In my view what the case law establishes is:

a)

The High Court has the power under the inherent jurisdiction to order the return of a child who is a UK citizen to the UK even where that child is not habitually resident in the UK;

b)

That power must be exercised with “great caution or circumspection”, Re B at [59];

c)

There must be circumstances that are sufficiently compelling to require or make it necessary to exercise the jurisdiction, Re M at [105];

d)

In determining whether to exercise the jurisdiction the Court must have close regard to

(i)

The existence of protective measures in the other country, both in terms of the Court and the social care system;

(ii)

The factual circumstances of the child;

(iii)

The relationship with the Family Law Act and the potential to illegitimately avoid its effect.”

The judge then summarised the parties’ submissions. The local authority, supported by the guardian, submitted that the high test in Re M was met in the light of the risks posed by the parents, given the history and their efforts to avoid the scrutiny of children’s social services, and failure to work open and honestly with the local authority. The parents relied on the reports from the Thai authorities that J was doing well and thriving, and the fact that they were only separated from her because of the passport order and court proceedings. On behalf of the mother it was submitted that the local authority’s intention to apply for an interim care order and risk assessments overstepped the line between the appropriate use of the inherent jurisdiction and the statutory scheme. On behalf of the father, counsel had relied on Re M and Re D. The judge recorded (at paragraph 64):

“I asked him whether he was submitting that a local authority could never 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. He accepted that there was such a jurisdiction but submitted that any case would have to be at the very high end of the spectrum of concern. This was not a case of abduction or abandonment.”

In giving the reasons for her decision, the judge started at paragraph 67 by rejecting the argument that the local authority’s application overstepped the line:

“To the degree that Mr Rees was submitting that Henke J in Re D was finding that there was no jurisdiction to make such orders where what was envisaged by the LA was a care order application when the child returned, I do not think that can be correct. Henke J made clear that she accepted there was a jurisdiction. The issue was whether she should make the order on the facts of the case.”

The judge proceeded to set out the factors for and against the order sought by the local authority. The factors she identified in favour of the order were:

On the other side, the judge noted that:

The judge then set out her conclusions in the following terms:

“83.

To make the order sought I have to proceed with great circumspection, and only if I find that the circumstances are sufficiently compelling so that it is necessary for J should I allow the use of the inherent jurisdiction.

84.

I also need to be conscious that I am, to some extent, cutting across the statutory scheme in the Family Law Act 1986. Having regard to Mr Barraclough and Mr Rees’ submissions that I should not simply order J’s return in order to carry out a risk assessment, it seems to me that the risk in Thailand must be so manifest, that it becomes necessary for her to return for her safety. To that degree “cutting across” the statutory scheme seems to me to be inevitable.

85.

Having considered all the evidence I have reached the conclusion that the high test is met. These are parents who have very recently been found to have posed a significant risk to their last child. There is considerable evidence of highly concerning drug-taking (referred to in [the previous child’s] proceedings) and criminality. There is no evidence that their behaviour, and therefore the risk, has changed. The parents have gone to very great efforts to evade scrutiny by the LA, not just by going to Thailand but by apparently taking steps to hide the fact the mother remained pregnant.

86.

The parents have a significant history of drug use. They had the opportunity to show that was no longer the case by undertaking the drug testing. Instead they have breached a court order and refused to do the drug tests. The excuse that the mother did not want to lose hair is little short of nonsensical given what is at stake here. I therefore draw the adverse inference that they continue to misuse drugs.

87.

The parents have left J in Thailand with some apparently recent friends, whose commitment to J seemed to be very short-lived. They could have arranged so one of them came to the UK whilst the other stayed with IH, but rather they chose to leave J in an unstable placement and both come to the UK.

88.

In my view, J is at very significant risk in Thailand in these parents’ care. Although I have great respect for the Thai authorities when faced with parents with this level of deceit and who have such limited connection with Thailand, it seems to me wrong that I should simply leave J in the hope that she will be protected by the Thai authorities.”