B (A Child)

The inherent jurisdiction permits orders requiring third parties to provide information or, where justified, attend to give evidence concerning an abducted child. It does not permit a passport order to coerce a third party into influencing another person to comply with the court’s order.

Before compelling a child to give oral evidence, the court must balance the evidential need against the likely harm to the child’s welfare. Disclosure of a child’s private communications must also be proportionate and confined to material relevant to the legitimate purpose. A penal notice threatening imprisonment cannot be attached to an order against a child who cannot lawfully be imprisoned for contempt.

A nine-year-old ward of court had been removed from the jurisdiction by her mother. In efforts to locate and secure the child’s return, the High Court made orders against members of the mother’s wider family, including the child’s 16-year-old half-brother, L.

The judge required L to attend court and give evidence, retained his passport, ordered disclosure of all his specified communications over a three-month period, and attached a penal notice. The judge considered that these measures could induce L and other relatives to pressure the mother to return.

L appealed against the attendance, passport, disclosure and penal-notice orders, and against the finding that he had not been candid. The central issues were the permissible limits of the inherent jurisdiction over third parties and the safeguards required when orders are made against a non-subject child.

1. Appeal allowed on all grounds. The court set aside the orders requiring L’s attendance and disclosure, the retention of his passport, the penal notice, and the adverse finding concerning his candour.
2. The court affirmed the inherent jurisdiction to require third parties who may hold relevant information about a missing or abducted child to provide it and, where appropriate, to attend court. That jurisdiction includes properly directed passport orders. A passport order may restrain a party who might remove a child, or preserve the efficacy of a pending hearing or other interlocutory relief.
3. However, the passport order against L was unlawful. Its stated purpose was to induce him to pressure his mother into returning B. Following Re B (Child Abduction: Wardship: Power to Detain) [1994] 2 FLR 479, the court had no power to impose a coercive restriction on one person in order to compel another person’s compliance. For this domestic-law purpose, coercion by passport retention was not materially different from coercion by detention. The same reasoning applied to the unappealed passport orders against the maternal grandparents.
4. As L was under 17, he could not be imprisoned or detained for contempt. The penal notice, which threatened imprisonment for non-compliance, was therefore wrong in principle.
5. Before requiring L to give evidence, the judge had to conduct the welfare-focused balancing exercise required by Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12. That analysis would meet any relevant obligation under Article 3.1 of the United Nations Convention on the Rights of the Child. The judge had not meaningfully assessed the need for L’s evidence against the effect on his welfare. The resulting attendance order could not stand.
6. The disclosure order was also disproportionate. It covered all specified communications, rather than communications relevant to locating B and her mother. The earlier procedural error in compelling L to attend under an impermissible threat of imprisonment made the adverse credibility finding unjust, so it too was set aside.

1. Court of Appeal (Civil Division): Allowed L’s appeal and set aside the challenged orders and finding: [2014] EWCA Civ 843.
2. High Court, Family Division, Exeter District Registry: On 28 March 2014, His Honour Judge Tyzack QC retained L’s passport, required his future attendance and broad communications disclosure, attached a penal notice, and made an adverse finding about his candour.