FD24P00632 - [2025] EWHC 1548 (Fam)

The Applicable Law

There is broad agreement as to the framework of the law. Ms Lindfield and Mr Rowbotham, correctly, in my view, concede “in principle” that the inherent jurisdiction can be triggered on establishing a child’s British nationality. The Court’s parens patriae jurisdiction, in respect of children who are not habitually resident in England and Wales but are in a jurisdiction with no reciprocal jurisdiction agreements, was considered at length in the case of Re M [2020] EWCA Civ 922. The following principles emerge:

The Family Law Act 1986 ("the 1986 Act") sets out when a court in England and Wales has jurisdiction to make the orders listed in s.1(1). These include, by s.1(1)(a), an order under s.8 of the 1989 Act (save for an order varying or discharging such an order) and, by s.1(1)(d):

“an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children -

so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but

excluding an order varying or revoking such an order.”

Section 2 of the 1986 Act contains general jurisdiction provisions. An order under s.1(1)(a) can only be made as follows:

A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless –

it has jurisdiction under the Council Regulation or the Hague Convention, or

neither the Council Regulation nor the Hague Convention applies but –

the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or

the condition in section 3 of this Act is satisfied.”

Section 2(3) provides when an order can be made under s.1(1)(d):

“A court in England and Wales shall not make a section 1(1)(d) order unless:

it has jurisdiction under the Council Regulation or the Hague Convention, or

neither the Council Regulation nor the Hague Convention applies but –

the condition in section 3 of this Act is satisfied, or

the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.”

Section 3 of the 1986 Act provides:

The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned –

is habitually resident in England and Wales, or

is present in England and Wales and is not habitually resident in any part of the United Kingdom …”

As Lady Hale pointed out in A v A, at [19], the “omission of a reference to section 2(3)(b)(i) from section 3(1) appears to be an oversight [but it] does not alter the sense of the provisions”.

Section 8 of the Children Act 1989 provides the following:

“Child arrangements orders and other orders with respect to children. (1) In this Act – “child arrangements order" means an order regulating arrangements relating to any of the following – (a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any person; “a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court; “a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.”

It is necessary to repeat the observations of Lady Hale and Lord Toulson in their joint judgment in Re B (supra).(I note that Moylan J conducted a similar exercise in Re M (supra)):

“[58] Lord Wilson JSC's conclusion on the issue of habitual residence makes it unnecessary to reach a decision on the hypothetical question whether it would have been right for the court to exercise its jurisdiction founded on B's nationality if she had no habitual residence at the time when these proceedings began. It is not in doubt that the restrictions on the use of the inherent or parens patriae jurisdiction of the High Court in the Family Law Act 1986 do not exclude its use so as to order the return of a British child to this country: this court so held in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1. The Court of Appeal, ante, p 614, devoted a large proportion of their judgment to this aspect of the case. Their approach is summed up in para 45: ‘Various words have been used down the years to describe the kind of circumstances in which it may be appropriate to make an order: 'only under extraordinary circumstances', 'the rarest possible thing', 'very unusual', 'really exceptional', 'dire and exceptional' 'at the very extreme end of the spectrum'. The jurisdiction, it has been said must be exercised 'sparingly', with 'great caution' … and with 'extreme circumspection'. We quote these words not because they or any of them are definitive—they are not—but because, taken together, they indicate very clearly just how limited the occasions will be when there can properly be recourse to the jurisdiction.’

[59] Lord Wilson JSC has listed a number of important issues to which that question would have given rise and which must wait for another day. It is, however, 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. (my emphasis) 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.

[60] The basis of the jurisdiction, as was pointed out by Pearson LJ in In re P (GE) (An Infant) [1965] Ch 568, 587, is that “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”. 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) [2013] 1 FLR 457, para 29. The judgment was ex tempore and it was not necessary to lay down a rule of general application, if indeed that was intended. It may be that McFarlane LJ did not so intend, because he did not attempt to define what he meant or to explain why an inherent jurisdiction to protect a child's welfare should be confined to extreme cases. The judge observed that “niceties as to quite where the existing extremity of the jurisdiction under the inherent jurisdiction may be do not come into the equation in this case”: para 31.

[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, using that expression in the sense described by US Supreme Court Justice Breyer in his book The Court and the World (2015), pp 91–92: “the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of 'comity' has assumed an expansive meaning. 'Comity' once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one another's toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.”

[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 JSC in paras 27–29.

Conversely, Lord Wilson JSC 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 the Mercredi case [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 JSC'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.”

Above, in the passage that I have emphasised in Lord Wilson’s judgment, the “concerns” identified in exercising this jurisdiction are succinctly set out: the danger of conflicting decisions; conflict with the applicable scheme between the countries in question; risk of unenforceable Orders. Whilst these are undoubtedly important considerations, they must not become a three-headed Cerberus barring all entry to the jurisdiction. There is something essentially amorphous about the parens patriae which will always elude prescription. That said, it is axiomatic that if the use of the inherent jurisdiction is not constrained to cases which are demonstrably exceptional, the risk of cutting across the statutory scheme becomes very considerably elevated, with all the obvious dangers that entails. For these reasons, the case law manifestly demonstrates that exercise of this jurisdiction requires “extreme circumspection” which will most likely be confined to broadly protective purposes. In applying it, the Court must therefore ask itself whether to do so would be to work in harmony with related foreign laws so that together, we can more effectively achieve common objectives in an expansive spirit of international comity.