H v D & Ors

The High Court has an inherent jurisdiction to protect children who are physically present within England and Wales from harm. That jurisdiction may be exercised despite concurrent proceedings in another country and may arise even where the children’s presence is transient. The necessary threshold is a sufficiently good reason connected with damage, or a risk of damage, to the children’s wellbeing. An attempted abduction, detention of the alleged abducting parent, and police safeguarding measures may establish a clear need for protective orders.

The application concerned the jurisdiction, residence and contact arrangements for two children who had lived in Venezuela and were present in England. The children remained subject to proceedings in Venezuela. Following earlier Hague Convention proceedings, the mother and children were in England, and the mother alleged that the father had attempted to abduct one child on 19 January 2007.

The father had challenged the exercise of the English jurisdiction but withdrew his application for contact and declined to participate further. The court therefore considered only the narrowest jurisdictional basis necessary to support protective orders, leaving wider jurisdictional arguments unresolved.

1. Jurisdiction. The court accepted that the English High Court has an inherent jurisdiction to protect children physically present within its jurisdiction from harm. It may exercise that jurisdiction irrespective of the proceedings in which the need for protection arises and despite concurrent proceedings in another territorial jurisdiction.
2. Transient presence. The jurisdiction may be exercised even where a child’s presence is transient, provided there is a sufficiently good reason, such as actual damage or a risk of damage to the child’s wellbeing. The authorities included Re Z (A Minor) (Freedom of Publication) [1994] 1 FLR 191, C v K (Inherent Powers: Exclusion Order) [1996] 2 FLR 506 and Re C (an Infant) [1956] 'The Times' 14 December.
3. Application. The attempted abduction, the children’s presence in England, the father’s detention, and the mother and children’s placement in a safe house on police advice established a clear need for protection in the children’s welfare interests. The court therefore exercised jurisdiction on that narrow basis without deciding whether jurisdiction also arose from wardship, habitual residence or the originating summons.
4. Orders. The children remained wards of court and in the mother’s care. Removal, communication by the father, and approach to the children’s home or school were prohibited. The father’s application concerning disclosure of the family papers was adjourned and costs were reserved. The wider jurisdictional challenge remained open.