SC v BH

Passport and related protective orders can substantially interfere with personal liberty and must therefore be made cautiously, proportionately and for no longer than necessary. A direct threat of abduction is not essential. A real risk may be established by the applicant’s conduct, the surrounding circumstances and the consequences of the proposed abduction. The court must assess the child’s welfare and the practical protection available if the order is not made. A short return date following seizure of travel documents may provide an important safeguard.

The applicant mother sought a passport order against the respondent father. The order would permit seizure of the father’s passport and any passport held in the child’s name if he entered England. The child lived habitually in England with the mother. Earlier English proceedings had refused the father’s application for summary return under the Hague Convention, and permission to appeal had been refused. The father subsequently obtained orders from a Texan court giving him sole custody and authority to obtain the child’s passport. He did not attend or participate in the present hearing. The central issue was whether the father’s conduct and the Texan orders established a sufficient and proportionate risk of abduction to justify the passport order.

1. Adjournment. The father had been served by post and email, knew of the application and had adequate time to obtain representation. The application for an adjournment was refused.
2. Applicable safeguards. Passport and Tipstaff orders are powerful measures which may interfere with private life and carry serious consequences. The court must act cautiously, apply the principles governing without-notice relief, ensure that the order is proportionate and avoid leaving it in force indefinitely. The approach in B v A (Wasted Costs Order) [2013] 2 FLR 958 was treated as providing appropriate guidance.
3. Real risk. A direct threat by the father was unnecessary. The court could assess risk from the earlier findings about his credibility and conduct, his failure to engage with the English courts, and his obtaining of Texan orders which authorised him to obtain the child’s passport without the mother’s consent. Those matters demonstrated a real risk that he would use the orders and passport to enter England and abduct the child.
4. Welfare and proportionality. Removal of the child from her mother, who had cared for her throughout her life, by a father who was effectively a stranger, and taking her to a foreign country, would be inimical to her welfare. The risk and potential consequences justified the restriction, particularly with a return date within 48 hours of any seizure of travel documents. The passport order was made.

The judgment records earlier Hague Convention proceedings in England, in which the father’s application for summary return was refused after a finding that the child was habitually resident in the United Kingdom. Permission to appeal that decision was refused by Thorpe LJ. The present application was determined at first instance by the High Court (Family Division).