A Child

The inherent jurisdiction and parens patriae jurisdiction should be exercised with extreme caution where a child is physically outside the jurisdiction and nationality is the only connection. In exceptionally grave circumstances, however, the court may make protective orders for a foreign-based child where the child voluntarily seeks assistance, is competent to make that decision, and faces an imminent forced marriage or comparable serious harm. The jurisdiction remains fact-sensitive and exceptional. A wardship order should be discharged when the courts of another jurisdiction have assumed responsibility for the child.

A 15-year-old dual British and Pakistani national had lived all her life in Pakistan. Her family had arranged her marriage to an older man whom she did not know and whom she did not wish to marry. She sought help from her half brother in Scotland and from the British High Commission in Islamabad.

The High Commission and the Forced Marriage Unit were willing to assist her removal to the United Kingdom, but required protective court orders. The High Court made her a ward and authorised arrangements enabling her to travel to Scotland. After her arrival, the Scottish authorities assessed her half brother’s home as suitable, and the Scottish courts became seised of the matter. The issues were whether the High Court had jurisdiction to protect a child never physically present in England and Wales, and whether wardship should continue.

1. The court had to approach the exercise of the inherent jurisdiction and the old parens patriae jurisdiction with extreme circumspection where the child was physically outside the jurisdiction and the proposed jurisdiction rested only on nationality. The caution identified by Thorpe LJ in Al Habtoor v Fotheringham [2001] EWCA Civ 186 was therefore applicable.

2. Those considerations did not prevent protective intervention in the present case. The circumstances were dire and exceptional: the child was aged 15, was assessed as Gillick competent, had voluntarily sought help, faced an imminent marriage against her wishes, and wished to leave the situation. A forced marriage was abusive, and the court would have protected a child facing such coercion within this jurisdiction.

3. The jurisdiction was highly fact-sensitive. The order was unusual and should only be made again in similarly exceptional circumstances. The judgment was intended to provide guidance to the Foreign and Commonwealth Office and the Forced Marriage Unit, but each future case would turn on its own facts.

4. Once the child had reached Scotland and the Scottish courts had assumed jurisdiction, it was inappropriate for the English wardship to continue. The wardship was discharged, the papers were directed to be made available to the Kilmarnock Family Court, and the requested orders were made.

This was a first-instance decision. The court recorded that wardship had been confirmed on 4 April 2008, followed by the child’s arrival in Scotland on 9 April 2008. The wardship was then discharged because the Scottish courts had jurisdiction and were dealing with the matter.