FD24P00632 - [2025] EWHC 1548 (Fam)

Background

L’s mother (ND), a Cameroonian national, arrived in France in 2019. She was later granted refugee status, arising from the persecution she was found to be facing in her home country. ND settled in Grenoble. Whilst living there, she met K, who is a dual British-Nigerian national. He was born in England and has extended family both here and in Nigeria. K is an engineer. He was working in Grenoble on a six-month consultancy contract when he met ND.

It is a feature of this case that almost every aspect of this couple’s relationship is in dispute. The two facts beyond dispute, however, are that the relationship was a short one (approximately eight months) during the course of which the parties did not live together and it resulted in the birth of L. ND gave birth to L in La Tronche, France in April 2021. By this stage, ND was in a new relationship with J. ND chose to name J as L’s biological father when registering the birth of the child. ND has made allegations of sexual and physical violence against K. This is given as the explanation for wrongly naming J as L’s father. I record that K strenuously disputes these allegations.

K appears quickly to have discovered that ND had falsely identified J as the father and, in June 2021, applied to the court in Grenoble for a DNA test, to which the mother agreed, though she had initially objected. Upon the DNA test confirming K as the biological father, the Court granted K parental responsibility. Subsequently, on 30^th October 2023, the French court granted ND full custody of L, with a progressive contact plan for K. This plan began with supervised visits at a contact centre and was gradually to increase to overnight stays. ND was obviously concerned that K might try to abduct their son and requested a Prohibited Steps Order from the French court, to prevent L from being taken out of France. The application was refused, it seems, because it had not been foreshadowed in writing and was made orally, late in the day.

Contact commenced in January 2024. There were problems virtually from the outset. Much of this revolved around K’s behaviour. A report prepared by Siége OSJ, the organisation responsible for promoting the contact arrangements, made the following observations, which, I record are not accepted by K:

“Working with [K] then proved to be complicated, as he refused to cooperate, turned up late, arrived accompanied or with animals, and refused to attend meetings so as not to communicate with [ND]. Our feedback on the educational differences between them, which risked disturbing their son did not concern them. On several occasions, he was aggressive with the team, invoking his rights and then realising his mistake when he reread with us the court decision that concerned him. I had to send him several reminder letters of the situation. As we were unable to work with him, we had to interrupt our call out just long enough for him to agree to come back and take part in the work: there were therefore no visits between the beginning of February 2024 and the end of March 2024. We had to organise a meeting with the parents for [L]’s first overnight stays with his father and for [ND] to explain her son’s habits and special needs. [K]’s refusal to consider these working hours and their importance seemed to us to put his son in difficulty, as [K] did not consider his needs and was not interested in his habits or the life he could lead at his mother’s house.”

Despite these difficulties, contact resumed on 13^th April 2024. Notwithstanding her concerns, it is clear that ND complied with the Contact Arrangements. On 27^th July 2024, it was arranged that L would spend his first overnight stay with his father. It was agreed that he would be returned to his mother the following day at 4pm. This was the first time L had ever spent a night away from home or been separated from his mother. L was not returned. ND quickly contacted the police who attended at the address K had provided both to the French court and to the contact centre. It proved to be a fictitious address. On 29^th July 2024, the contact centre discovered that K had emailed them at 4pm the previous day, precisely the time that L should have been returned to his mother, to inform them that he had taken L on holiday with his family for two weeks. K did not indicate where he had gone.

On 30^th July 2024, the French police discovered that K had travelled to England with L on the same day that he was collected from the contact centre. At the expiry of the two-week period, when L was not returned to his mother, further enquiries were made as to his whereabouts. On 10^th August 2024, it was confirmed that K was in Nigeria. ND immediately contacted the Nigerian consulate and, on 9^th September 2024, a month later, ND was informed by the investigating French Judge that an international arrest warrant had been issued against K. ND was also informed that K had managed to obtain a British passport for L. ND later learned that K had also obtained a Nigerian passport for L.

In pursuance of that arrest warrant, K was arrested on 13^th December 2024, whilst in the United Kingdom. On 17^th December 2024, ND applied to the High Court for a Location Order and for summary return of L to France. It transpired that L had remained in Nigeria.

On 17^th January 2025, ND made an application for return of L to England. Ms Kate Grange KC, sitting as a Deputy Judge of the High Court, directed that the matter be listed to determine whether this Court has jurisdiction to make an order for the summary return of L to England, and if so, whether it should exercise it. An Order was made that L should have contact with his mother on Wednesdays, Saturdays and Sundays at 5pm via WhatsApp.

On 30^th January 2025, ND made a Part 25 Application for the instruction of an expert in French Law to report on what provisions might be made in that jurisdiction to procure L’s return to France. That application was granted in the Order of 19^th February 2025. It was also confirmed to the parties at that hearing that extradition proceedings had been commenced to secure K’s return to France. These proceedings are opposed by K. Inevitably, ND was concerned as to who might be looking after her son. K told the Court that his brother had commenced guardianship proceedings in Nigeria and has subsequently provided a copy of an Order, dated 19^th March 2025, from the Nigerian Court, stating that a “Mr and Mrs O have been appointed as legal guardians for [L]”. This document, which has been filed in these proceedings, reveals that the first names of Mr and Mrs O have been redacted from the Order, which also states that L is the half nephew of Mr O and Mrs O is K’s sister-in-law. Disturbingly, the application itself and any supportive documents have not been disclosed, notwithstanding that ND is listed as the Respondent in those proceedings. Moreover, the Order records the following:

“Now after a careful perusal of the Application, the supporting processes and other attached documents proffered by parties through their counsel, this Honorable Court is convinced that the 2 Respondents herein are the biological parents of the Subject and are willing to allow the 2 Applicants take over parental obligations, responsibilities and authority over the Subject.”

It is clear that the Nigerian Court was given entirely false information. ND knew nothing about the application, had not received any documentation from the Court and most certainly had not given her consent for Mr and Mrs O to take over parental responsibility for her son.

On 14^th March 2025, the expert report was received, setting out the options available to ND in France. The report is written by Mme. Morghân Peltier, a partner in Chauveau Mulon & Associés, a firm of French lawyers based in Paris. Mme. Peltier was asked the following questions:

What legal remedies are available to the mother in France to secure the return of the child in the circumstances of this case?

In the event the father was extradited to France and there were criminal proceedings in France, how does this impact your answer to (1), if at all?

What enforcement mechanisms are available in France that could be used to secure the return of the child if an order was made for the child’s return and not complied with?

Would the parties be entitled to any legal aid and if so, what are the requirements of obtaining the same? If not, what would be the legal costs of such proceedings?”

The first question, concerning the child’s return from Nigeria to France, is addressed in these terms:

Referral to the Ministry of Europe and Foreign Affairs (MEAE) - Insofar as Nigeria has not ratified the Hague Convention of 25 October 1980, it would be possible to refer the matter to the Office for the Protection of Minors and the Family of the French Ministry of Europe and Foreign Affairs (MEAE). The child would then be returned from Nigeria to France through consular channels. In this respect, the fact that [L] is not being looked after by any of his parents, as they are not in Nigeria, could be an argument in support of the need to order his prompt return to France.

However, while in theory it is possible to apply to the MEAE, practice has shown that the consular channels is often ineffective and time-consuming. The mother could therefore lodge a request to the MEAE, but we have real reservations about the effectiveness of this channels, despite the arguments in its favors. (my emphasis)

Finally, if this procedure were to be used, it would be advisable to apply for the exequatur of the French decision establishing [L]' habitual residence with the mother in France, before the competent court in Nigeria. This could provide an additional argument for consular proceedings, as the French judgment will be recognized in Nigeria.”

For completeness, I should add to the above that Nigeria has not ratified the Hague Convention nor is there any bilateral agreement between Nigeria and France apposite to this case. It is also to be highlighted that whilst applying to MEAE is an option, it is described as having a theoretical complexion to it, and that practice shows consular channels are often ineffective and time consuming. L does not have time on his side. He finds himself in an alien country now without his father or mother and in a culture that will be strange to him. His language was French, which is now not spoken around him. Neither the French Court nor this Court know anything, of any consequence, about his present carers or his general circumstances. It is plainly causing L’s mother great anxiety and distress.

The Nigerian Court has also, as I have stated above, been given false information. L is manifestly vulnerable. He has endured plainly traumatic experiences. In this sphere of international abduction law, there is frequently an intense concentration on the interpretation and application of the legal framework and case law. The guiding principle is one of international comity. However, all this can risk a deflection from the central objective of the process, which is intended speedily to protect and return children who have been wrongfully removed. It is, I think, helpful to look at the Criminal Court’s approach to child abduction and the emphasis placed on the child victim, see R v RH and another [2016] EWCA Crim 1754. There, Treacy LJ reviewed the sentencing guidelines for cases of abduction, indicating those features which indicate gravity of offending:

We have considered Kayani, R v SB [2012] 2 Cr App R (S) 71 and a number of other decisions of this court which reflected the varying circumstances underlying prosecutions for these offences. We have also had the benefit of one member of this constitution having considerable experience in handling abduction cases under the jurisdiction of the Family Division of the High Court.

It seems to us that the most serious class of case, of which Kayani is an example, will involve a high level of harm exemplified by a very lengthy period of abduction or detention, a serious effect on the child (whether emotional or otherwise), or serious damage to, or severance of a loving relationship with a parent, siblings, or other relevant person.

High culpability may be exemplified by persistent non-disclosure or concealment of the place of abduction, significant and sophisticated planning, breach of a court order or disregard of court process, intention to sever the relationship between the child and another relevant person, or abduction for a criminal purpose (for example a sexual purpose, female genital mutilation, or forced marriage).

Where there is a combination of both a high level of harm and a high level of culpability we would expect the bracket for such offending after a trial, to be 5 to 7 years.”

These passages provide a very convenient reference for identifying the seriousness of the wrongful removal. Many of the factors identified there resonate strikingly with K’s behaviour. It is obvious that K’s conduct, even on his own account, is at the extreme end of the index of gravity. It requires to be identified as such. K’s disregard for his son’s safety and emotional welfare has resulted in him being in an extremely vulnerable situation which requires every effort to be made to achieve a speedy resolution. It is difficult to imagine a situation where delay could be more inimical to the welfare of the child.

Ms Lindfield and Mr Rowbotham, on K’s behalf, submit that the passages in the CM&A report, prepared by Mme. Peltier (see para. 13 above) reveal options available in the French legal system which cause them to identify what they term as “the key question” before this Court as being: “Should the court’s protective (parens patriae) jurisdiction be exercised to order a child to be brought to England and Wales for the sole purpose of considering their summary return to France?”

They answer this question in their written submissions thus:

“There is not (as far as these authors are aware) any reported example of the court’s protective jurisdiction being used for this purpose. It is submitted that the answer for that gap in the authorities is obvious: such an order has no inherently “protective” benefit to [L] and would amount to an unacceptable creep of the court’s inherent powers. That the question posed at paragraph 61 above should be answered in the negative is further supported by the fact that – save for the nature of the mother’s application – there is no aspect of this case that might be considered exceptional or otherwise outside what has been described as the ‘ordinary, or expected, circumstances’ of international child abduction, see McFarlane LJ in Re N at [31].”

I should also add that it is emphasised, on behalf of the father, that there is no cited case in which a child’s summary return has been ordered, pursuant to the protective jurisdiction in focus. Rather more than that, there is a considerable body of case law where the Court has declined to exercise its powers, e.g. H v H (Jurisdiction to Grant Wardship) [2011] EWCA Civ 796, [2012] 1 FLR 23; and GC v AS (No. 2) [2022] EWHC 310 (Fam), [2022] 2 FLR 756. The seemingly sole example of an order made pursuant to the parens patriae for a child to be summarily returned to England was overturned by the Court of Appeal in Re M (A Child) (Exercise Of Inherent Jurisdiction) [2020] EWCA Civ 922, [2021] 1 FLR 415. McFarlane LJ, in Re N (Abduction: Appeal)[2012] EWCA Civ 1086, [2013] 1 FLR 457, strikes me as at least casting a quizzical eye as to whether the jurisdiction exists:

It seems to me that if the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum. Hogg J spoke of very dire circumstances justifying what Thorpe LJ in Al Habtoor was rightly concerned should be a very careful exercise of the jurisdiction if it is to be exercised at all. In Re B the dire circumstances referred to were the circumstances of the 15-year-old young person concerned, who had thrown herself on the mercy of the British authorities and the British authorities had sought orders from the High Court to assist their ability to protect her.”

McFarlane LJ was summarising Thorpe LJ’s observations in: Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951. McFarlane LJ plainly had in mind the following paragraph in Thorpe LJ’s judgment:

I therefore reject Mr Swift's attempt to establish jurisdiction by dependency and turn to his final submission to the effect that, whatever may be the restrictions introduced by the Family Law Act 1986, the court retained an inherent jurisdiction, derived from the fact that Tariq is a British national, at least to grant the declaration that Tariq was and is unlawfully detained within the United Arab Emirates. There are a number of things to be said of this submission. The first is that in my opinion the courts of this jurisdiction should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality. Parens patriae jurisdiction has a fine resounding history. However its practical significance has been much diminished domestically since the codification of much child law within the Children Act 1989. In order to achieve essential collaboration internationally it has been necessary to relax reliance upon concepts understood only in common law circles. Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange. The parens patriae concept must seem even more esoteric to other jurisdictions than the concept of domicile. If we are to look for reciprocal understanding and co-operation, so vital with the steady increase in mobility and mixed marriage together with an equal decrease in the significance of international frontiers, we must refrain from exorbitant jurisdictional claims founded on nationality. To make a declaration of unlawful detention in relation to a child of dual nationality cared for by a biological parent in a jurisdiction whose courts have sanctioned the arrangement by order is only to invite incomprehension, and perhaps even stronger reactions, in that other jurisdiction.”

It may be that in the intervening years (nearly a quarter of a century) since Thorpe LJ’s judgment, international “reciprocal understanding and co-operation” has proved to be more resilient to common law concepts than Thorpe LJ feared. Wardship, for example, has remained an active feature of our law in this sphere. In any event, on the facts of this case, we are concerned not with a child cared for “by a biological parent in a jurisdiction whose courts have sanctioned the arrangement”, but with a child who is not cared for by either biological parent and whose legal status in Nigeria has been achieved at best erroneously, more likely by deception.

Though Mme. Peltier in her Report, referred to above at paragraph 14, identified a range of combined procedures available in France, she nonetheless concluded that “French legal action alone would not be sufficient to ensure [L]’s rapid and effective return to France.” It strikes me that the use of the word “alone” in that sentence highlights the potential for cooperative strategies to be deployed between the various Courts involved in this highly unusual triangular situation. It is a recognised feature of child protection that where agencies work together, there are invariably better outcomes for children. In this sphere of child abduction, something of that principle, by parity of analysis, can apply, in the appropriate case, to cooperation by the respective Courts involved. Indeed, as this international jurisdiction has evolved and matured, it has generated a structured framework of international judicial cooperation (e.g. International Family Justice Office (IFJO); Family support service for the Foreign, Commonwealth & Development Office (FCDO)). Further, there are now well-established patterns and structures for international judicial exchanges and cooperation.

It is to be remembered that the principle of international comity is predicated not only on Courts of differing jurisdictions, recognising and enforcing each other’s judgments and orders, but also on an understanding of the need for reciprocity, appreciating that association of nations achieves mutual benefit. The scaffolding of the Article 13(b) defences under the Hague Convention 1980, illustrates the point, constructing, as it does, key exceptions to the general rule, that a child removed or retained across international borders should be promptly returned to their country of habitual residence. Approached in this way and in a case which has an unusual factual matrix, consideration of the scope of the parens patriae need not be perceived as an ‘exorbitant jurisdictional claim founded on nationality’ but as a facet of reciprocal understanding, giving effect to the cooperation that Thorpe LJ identified as being “so vital”. This “expansive meaning” of comity was, I note, identified in Justice Breyer’s book, The Court and the World (2015), noted with approval in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4.

Whilst the parens patriae concept might, in Thorpe LJ’s view, seem “esoteric to other jurisdictions”, it is perhaps important to recollect that the civil law jurisdiction is rooted in Roman law and particularly, the Napoleonic code. Perhaps all law is to some degree necessarily esoteric in origin. What ultimately matters is not the nature or approach of the law in a particular jurisdiction, but whether it can be utilised effectively, collaboratively, and reciprocally in modern practice.