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

Under the national law of England and Wales, the High Court may exercise its inherent jurisdiction in respect of a child who is a British subject even though the child is outside the jurisdiction. The principle was first expressed by Lord Cranworth LC in Hope v Hope (1854) 4 De GM & G 328 and the rationale summarised by Lord Pearson in In re P (GE) (An Infant) [1965] Ch 568 at page 587:

“It is clear from the authorities that the English court has, by delegation from the Sovereign, jurisdiction to make a wardship order whenever the Sovereign as parens patriae has a quasi-parental relationship towards the infant. The infant owes a duty of allegiance and has a corresponding right to protection and therefore may be made a ward of court: Hope v Hope. Subsequent cases confirm that that is the basis of the jurisdiction.

An infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection, and the English court has jurisdiction to make him a ward of court.”

Prior to the implementation of the 1989 Act, there were a number of different provisions under which a child could be placed in the care of the local authority, including via wardship pursuant to section 7 of the Family Law Act 1969. The effect of the 1989 Act was to replace those provisions with a single route – the application by the local authority for a care or supervision order under section 31(1) – and a single set of threshold criteria under section 31(2), hence the restrictions imposed by section 100. It is, however, open to a local authority to seek to invoke the inherent jurisdiction to support its powers and obligations under Part III of the 1989 Act and under orders made under Part IV to achieve results which could not otherwise be achieved. Orders made under the inherent jurisdiction on the application of a local authority include declarations as to the lawfulness of medical treatment or medical procedures, injunctions to restrain publicity which would be harmful to the child, and orders designed to prevent the child associating with a dangerous adult.

It has also been invoked by local authorities seeking to secure the return to this country of a child who is perceived to be at risk of significant harm. In Lewisham London Borough Council v D (Criteria of Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449 (Bodey J), for example, a local authority sought the return to England of a child who had been taken to the Gambia where evidence suggested he was at risk of significant harm. The child was made subject to an interim care order (the court holding that it had jurisdiction to make the order as he was habitually resident in England) and the local authority was granted leave to apply under the inherent jurisdiction for an order that he be returned. In Re M (Wardship: Jurisdiction and Powers) [2015] EWHC 1433 (Fam), a local authority was granted orders under the inherent jurisdiction to secure the return of four children who had been taken out of the UK and were travelling via Turkey and Moldova to Syria, possibly to join Islamic State. Sir James Munby P observed (at paragraph 32):

“cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world.”

In recent years the power to order the return of a British subject child who is outside the jurisdiction has been considered by the senior courts on several occasions, in particular by the Supreme Court in A v A (Children Habitual Residence) [2013] UKSC 60 and Re B (Habitual Residence Inherent Jurisdiction) [2016] UKSC 4 and by this Court in Re M (A Child) [2020] EWCA Civ 922. All three of those cases concerned applications by one parent for the return of children abducted to, or retained in, a foreign country by the other parent. They did not involve an application by a local authority.

In A v A, a mother applied under the inherent jurisdiction for the return of four children retained by their father in Pakistan. Three of the children had been born in England, the fourth in Pakistan. It was accepted that there was power under the inherent jurisdiction to order the return of a child. The issues were, first, whether the youngest child, who had never been present in England, was nevertheless habitually resident in this country and, secondly, whether irrespective of his habitual residence the court could order his return by reason of his nationality. The Supreme Court was unable to determine the first issue, holding that an order under the inherent jurisdiction for a child’s return fell within the scope of Brussels IIA (then in force), but the question whether Brussels IIA required physical presence as a prerequisite of habitual residence was, at that time, not acte clair and would therefore have required a reference to the Court of Justice of the European Union. The Court held, however, that an order for the return of a child who is a British subject could be made under the inherent jurisdiction and did not fall under section 1(1)(a) or (d) of the FLA 1986.

The question was whether it was appropriate to exercise the jurisdiction in the circumstances of the case. Baroness Hale of Richmond, giving the judgment with which the majority of the Court agreed, accepted (at paragraph 64) the submissions of counsel that there were a number of important general considerations which may militate against the exercise of the jurisdiction. These included the fact that

“it is inconsistent with and potentially disruptive of the modern trend towards habitual residence as the principal basis of jurisdiction; it may encourage conflicting orders in competing jurisdictions; using it to order the child to come here may disrupt the scheme of the 1986 Act by enabling the child's future to be decided in a country other than that where he or she is habitually resident.”

Lady Hale acknowledged that those were all reasons for “extreme circumspection in deciding to exercise the jurisdiction” but added that “all must depend on the circumstances of the particular case”. The case was remitted to the High Court judge to determine whether the jurisdiction should be exercised in that case.

In Re B (Habitual Residence Inherent Jurisdiction), the applicant was the same sex partner of the child’s mother who had been involved in caring for the child during their relationship and after it broke down had regular contact. The mother then left the country with the child to live in Pakistan. Initially unaware that the child had been removed, the applicant applied for shared residence and contact under the 1989 Act and then, when she discovered what had happened, applied under the inherent jurisdiction for the child to be made a ward of court and for an order for her summary return. The first instance judge (Hogg J) held that the English courts had no jurisdiction under the FLA 1986 because the child was no longer habitually resident in this country and that the “dire circumstances” required for making an order for the child’s return under the inherent jurisdiction had not been made out. Her decision was upheld by this Court. On appeal to the Supreme Court, however, the majority (Baroness Hale, Lord Wilson and Lord Toulson, Lord Clarke of Stone-cum-Ebony and Lord Sumption dissenting) held that the court had jurisdiction under the FLA 1986 because the child had been habitually resident in England at the date on which the application under the 1989 Act had been issued. Having so decided, it was therefore unnecessary for the Court to determine whether the alternative ground under the inherent jurisdiction had been made out. The Justices proceeded, however, to make a series of obiter observations which have been extensively relied on in subsequent cases.

In their joint judgment, Baroness Hale and Lord Toulson said (at paragraph 59):

“It is … one thing to approach the use of the jurisdiction with great caution or circumspection. It is another thing to conclude that the circumstances justifying its use must always be “dire and exceptional” or “at the very extreme end of the spectrum”. There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders. It is, to say the least, arguable that none of those objections has much force in this case: there is no applicable treaty between the UK and Pakistan; it is highly unlikely that the courts in Pakistan would entertain an application from the appellant; and it is possible that there are steps which an English court could take to persuade the respondent to obey the order.”

Having cited Lord Pearson’s dictum in In re P (GE) (An Infant) quoted above, they continued (at paragraphs 60-62):

“60.

… The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to “cases which are at the extreme end of the spectrum”, per McFarlane LJ in In re N (Abduction: Appeal) [2021] EWCA Civ 1086 ….

61.

There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality based inherent jurisdiction may run counter to the concept of comity ….

62.

If a child has a habitual residence, questions of jurisdiction are governed by the framework of international and domestic law described by Lord Wilson in paras 27 to 29. Conversely, Lord Wilson has identified the problems which would arise in this case if B had no habitual residence. The very object of the international framework is to protect the best interests of the child, as the CJEU stressed in Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22. Considerations of comity cannot be divorced from that objective. If the court were to consider that the exercise of its inherent jurisdiction were necessary to avoid B’s welfare being beyond all judicial oversight (to adopt Lord Wilson’s expression in para 26), we do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity.”

Lord Wilson said (at paragraph 53):

“I do … agree with Lady Hale and Lord Toulson when, in para 60 below, they reject the suggestion that the nationality-based jurisdiction falls for exercise only in cases “at the extreme end of the spectrum”. I consider that, by asking, analogously, whether the circumstances were sufficiently “dire and exceptional” to justify exercise of the jurisdiction, Hogg J may have distracted herself from addressing the three main reasons for the court’s usual inhibition about exercising it. In para 59 below Lady Hale and Lord Toulson identify those reasons and I agree that arguably none of them carries much force in the present case. To my mind the most problematic question arises out of the likelihood that, once B was present again in England pursuant to an order for her return, the appellant would have issued an application for orders relating to care of her or contact with her. The question would be whether in such circumstances an order for her return would improperly have subverted Parliament’s intention in enacting the prohibitions comprised in sections 1(1)(d), 2(3) and 3(1) of the 1986 Act. Or, in such circumstances, should the interests of the child prevail and indeed would Parliament have so intended?”

In his dissenting judgment, with which Lord Clarke agreed, Lord Sumption (at paragraph 81) described the continued existence of the inherent jurisdiction, including the making of orders for the return of a child to this country, as “something of an anomaly”. He continued (at paragraph 82):

“Such orders have been made in two classes of case, both of which can broadly be described as protective. The first comprises abduction cases before the enactment of a statutory jurisdiction to deal with them. The second comprises cases where the child is in need of protection against some personal danger, for example where she has been removed for the purpose of undergoing a forced marriage or female genital mutilation. All of the modern cases fall into this last category.”

Lord Sumption made three further comments:

“84.

First, the jurisdiction is discretionary, and should not be overturned in the absence of some error of principle or misunderstanding of the facts, unless the judge has reached a conclusion that no judge could reasonably have reached.…

85.

Secondly, the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme. If, as Lady Hale and Lord Toulson suggest, the use of the inherent jurisdiction is not reserved for exceptional cases, the potential for it to cut across the statutory scheme is very considerable. I have no doubt that it would do so in this case. In the first place, it would fall to be exercised at a time when the child will have been with her mother in Pakistan for at least two years, and will probably have become habitually resident there. Secondly, it seems plain that if an application under the inherent jurisdiction had been made by, say, an aunt or a sister of the respondent, there could be no ground for acceding to it. It is necessary to make this point in order to remind ourselves that it is to protect her relationship with the child on the basis that she should be regarded as a co-parent that the appellant is invoking the inherent jurisdiction of the court. The real object of exercising it would be to bring the child within the jurisdiction of the English courts (i) so that the court could exercise the wider statutory powers which it is prevented by statute from exercising while she is in Pakistan, and (ii) so that they could do so on different and perhaps better principles than those which would apply in a court of family jurisdiction in Pakistan. Thirdly, this last point is reinforced by the consideration that the appellant’s application in the English courts is for contact and shared residence. This is not relief which the statute permits to be ordered under the inherent jurisdiction, in a case where there is no jurisdiction under the Council Regulation or the 1996 Hague Convention ….

86.

Third, if there were grounds for believing the child to be in danger, or some other extreme facts justifying the exercise of the inherent jurisdiction, it would no doubt be possible in the exercise of the court’s inherent jurisdiction to direct an independent assessment of the situation of the child in Pakistan. Unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country ….”

In Re M, the child, who was a British national, was taken to Algeria as a baby where she lived with her father and his family for over ten years. Her mother then applied to the High Court to exercise its inherent jurisdiction by making her a ward of court on the grounds that she had suffered harm inflicted by the father. At first instance, the judge made her a ward and ordered that she be brought to England for an assessment as to her best interests. But on appeal to this Court his order was set aside.

In his judgment, Moylan LJ (with whom Henderson and Baker LJJ agreed) conducted an extensive review of the earlier cases. At the outset, he observed (paragraph 43):

“The court's inherent jurisdiction is, of course, not statutorily defined. It is also a jurisdiction which can potentially apply in a very wide range of circumstances and under which the court can make "many orders relating to children", as referred to by Lady Hale, at [26], in A v A …. Context is, therefore, very important for any analysis of the circumstances in which and the form or manner in which it is appropriate for the jurisdiction to be exercised.”

Further on in the course of his analysis, at paragraph 61 he made the following observation about the provisions of section 1 of the FLA 1986:

“I would also suggest that, whilst the power which the court is purporting to exercise is clearly important and may be determinative, the court will need to consider whether the order which it is proposing to make is, in reality, an order within s.1(1)(a) or, in particular, s.1(1)(d) ….”

At paragraph 105, Moylan LJ expressed his conclusion as to the test to be applied when deciding whether to exercise the jurisdiction to order the return of a child:

“105.

In my view, following the obiter observations in In re B, whilst the exercise of the inherent jurisdiction when the child is habitually resident outside the United Kingdom is not confined to the "dire and exceptional" or the "very extreme end of the spectrum", there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction. If the circumstances are sufficiently compelling then the exercise of the jurisdiction can be justified as being required or necessary, using those words as having, broadly, the meanings referred to above.”

He continued:

“106.

In my view the need for such a substantive threshold is also supported by the consequences if there was a lower threshold and the jurisdiction could be exercised more broadly; say, for example, whenever the court considered that this would be in a child's interests. It would, again, be difficult to see how this would be consistent with the need to "approach the use of the jurisdiction with great caution or circumspection", at [59]. It is not just a matter of procedural caution; the need to use great caution must have some substantive content….

107.

The final factor, which in my view supports the existence of a substantive threshold, is that the 1986 Act prohibits the inherent jurisdiction being used to give care of a child to any person or provide for contact. It is also relevant that it limits the circumstances in which the court can make a s.8 order. Given the wide range of orders covered by these provisions, a low threshold to the exercise of the inherent jurisdiction would increase the prospect of the court making orders which would, in effect, "cut across the statutory scheme" as suggested by Lord Sumption in In re B, at [85]. This can, of course, apply whenever the jurisdiction is exercised but, in my view, it provides an additional reason for limiting the exercise of the jurisdiction to compelling circumstances. As Henderson LJ observed during the hearing, the statutory limitations support the conclusion that the inherent jurisdiction, while not being wholly excluded, has been confined to a supporting, residual role.”

Later, when setting out his reasons for allowing the appeal, Moylan LJ observed (paragraph 134) that the judge “did not consider the provisions of the 1986 Act and how they impacted on his decision whether the inherent jurisdiction should be exercised.” Noting the recital in the judge’s order to the effect that the child should be brought to this country "so that an assessment can be made in a place of safety as to her best interests and living arrangements", Moylan LJ observed:

“136.

It is clear from this recital, and indeed the provisions in the order dealing with A's care, that the court was embarking on a welfare enquiry, which would include making orders dealing with arrangements for her care. Whilst no order had yet been made providing for A's care when she was in England, it is inevitable that the judge would have had to make such an order prior to her arrival. This was why the judge required the Local Authority urgently to address the question of A's accommodation, "including whether either of A's parents are able to care for A" and, if not, what "other accommodation is available"; and why the parents were also required to set out their proposals for A's care so that a decision could be made at the next hearing. An order providing for her care needed to be made before A arrived here because the necessary arrangements needed to be in place. Such an order would either have conflicted with the provisions of the 1986 Act or, if it gave care to a Local Authority, would have conflicted with s.100 of the 1989 Act.

137.

However, even if no such order was made … the clear purpose of the order was to enable the English court to undertake a welfare enquiry for the purposes of deciding who should care for A and, as acknowledged by Ms Kirby [the mother’s counsel], to seek to vest this court with jurisdiction to undertake this exercise by procuring A's presence in England. In my view, this would be using the inherent jurisdiction directly for the purpose of avoiding the effect of the 1986 Act and would, in the circumstances of this case, improperly have subverted Parliament's intention (to adopt Lord Wilson's words whilst recognising that this was not his conclusion). I deliberately say, in the circumstances of this case, because I can see that there may well not be a bright line between an order which conflicts with the limitations imposed by the 1986 Act and one which does not. In my view, it would be doing so in this case because the judge's order was expressly for the purpose of enabling this court to decide who should care for A and whether here or in Algeria.”

In GC v AS (No.2) [2022] EWHC 310 (Fam), Poole J summarised the principles derived from the appellate authorities in these terms (at paragraph 29):

“The jurisdiction is protective. Whilst there may be many circumstances in which it might be said that children habitually resident and present abroad need protection, the exercise of the parens patriae jurisdiction is to be confined to those cases in which there are circumstances sufficiently compelling to make it necessary to protect the children, in this case by their being removed from Libya and returned to England. Other measures must be insufficient. If it is to be exercised "with great caution or circumspection", then the jurisdiction cannot be exercised in every case where it would be in the best interests of a child habitually resident and physically present abroad to be returned to the jurisdiction of England and Wales.”

That case, like A v A, Re B and Re M, involved an application by one parent seeking the return to this country of a child being retained abroad by another family member. In Re D (Wardship Jurisdiction Cutting Across Statutory Schemes) [2024] EWHC 1658 (Fam), Henke J had to consider the use of the inherent jurisdiction on an application by a local authority. Re D concerned a 4 year old girl who had been born and lived her entire life in Iraq. Some years earlier, her father, who was resident in the UK, had been found to have been involved in the death of another child, and, it was alleged, posed a risk to D. At an earlier hearing, another judge had made an order on the application of the local authority under the inherent jurisdiction for D to be brought to the UK. The mother then applied to set aside those orders and her application was granted by Henke J.

After an extensive review of the case law, Henke J reached the following conclusions (paragraphs 93-97):

“93.

….I consider that in this case the court properly granted the local authority permission to make an application in relation to D under the inherent jurisdiction. After all, the relevant statutory criteria were met.

94.

I further consider and so find that the inherent jurisdiction applied to D as a British national. As a British national abroad in the circumstances that existed at the time the court was seized, she was in real danger and at grave risk of harm for the reasons I have set out in paragraph 91 above. The court was acting to protect a British national who could not be protected by any other statutory means. In the circumstances of this case, the inherent jurisdiction was being accessed as a truly residual jurisdiction to act protectively in relation to a child for whom it had jurisdiction.

95.

I accept, however, that just because a court has jurisdiction that does not mean that the court should exercise that jurisdiction. In my view, the argument that the orders in this case cut across the statutory scheme goes to the question of how that jurisdiction should be exercised in this case, applying the judgment of Lord Sumption in Re B (above) at paragraph 85. As Lord Moylan stated at paragraph 43 of Re M (above), "[c]ontext is, therefore, very important for any analysis of the circumstances in which and the form or manner in which the jurisdiction is exercised."

96.

I have reminded myself that I must consider the reality of the application made by the local authority in this case and the orders made by the courts (see Lord Sumption in paragraph 85 in Re B – " The real object in exercising it " - and Lord Justice Moylan ReM at paragraph 61 who, in the context of the FLA 1986 , states that " the court will need to consider whether the order it is proposing to make is, in reality, an order within […]". In my view, in this case the court was not making the orders simply to protect a British national abroad. This case is, in my view, very different from those where the court acts to protect a child abroad from the risk of a forced marriage or from FGM. It seems to me that protective jurisdiction could be extended to include protecting her from her father, perhaps by stopping him travelling to be with her. However, in my judgment the orders in this case went too far. They sought to compel D's return to this jurisdiction. Those orders seeking to compel return were made so that the local authority could exercise their public law duties to safeguard and protect her as a child in need in their area and so that public law proceedings could be taken in relation to her….That is a use of the inherent jurisdiction which cuts across the statutory scheme in this case and its jurisdictional boundaries.

97.

….The reality is that those orders cut across a statutory scheme, applying paragraph 61 of Re M. The fact that in Re M the issue was whether it cut across the statutory scheme of FLA 1986 does not, in my view, diminish the principle which lies behind the decision and paragraph 61 of the judgment. The court must look at the reality of the situation. The reality of this case is that the purpose of the assessment in the context of this case was to see whether public law orders were required. Those were orders which the local authority could not apply for in relation to D whilst she remained out of the jurisdiction. Given that as a matter of fact, the events since 25 September 2019 can only have aggravated the risk, the reality was that the assessment would be a precursor to public law orders. I agree with the submission that the reality of this case is that, from the start, the local authority have sought inherent jurisdiction orders with a view to securing public law orders in relation to D. In the circumstances of this case, although the residual inherent jurisdiction did exist in this case to protect D, I have decided that it ought not to have been exercised. I frankly acknowledge that from a child protection perspective that is counter intuitive. I see the force of the Guardian's argument that the orders have protected D from her father who on the findings of Mr Justice Moor is a risk to any child in his care. However, I have reminded myself that local authorities do not have a roving child protection mandate and that their duties and powers are circumscribed by their having the jurisdiction to exercise those powers and observe those duties. Hence, after long and hard deliberation, I have had to conclude that D was a child who had never been present in the jurisdiction and that the local authority was seeking her return to enable them to exercise a statutory jurisdiction which was not available to them had she remained abroad.”