M (Children), Re

The High Court may make a British child a ward of court although the child is abroad. The jurisdiction requires extreme circumspection, but is appropriate where it is necessary to protect a child from grave risks, including risks to life or inhuman or degrading treatment.

A local authority may invoke the inherent jurisdiction where the statutory conditions are met and the child is likely to suffer significant harm without it. Urgent relief may properly be sought without notice where advance warning would compromise welfare. A temporary anti-tipping-off order may prohibit reporting of proceedings where anonymisation would frustrate the protective purpose, but it must be strictly necessary, closely reviewed and discharged once its purpose has ended.

Four British children travelled abroad with their parents and were detained first in Turkey and then in Moldova. The local authority sought urgent wardship orders without notice because it believed that the children might otherwise be taken to a dangerous war zone and could not safely be assessed.

Baker J initially made the children wards and sought their retention in Turkey. When the family was being sent to Moldova, the President made a further urgent wardship order requesting the Moldovan authorities to retain the family, secure the passports and permit a welfare assessment. The family subsequently returned voluntarily to England and Wales. The court then considered the legal basis for exercising wardship abroad and for temporarily prohibiting reporting of the proceedings.

1. Wardship jurisdiction. The court held that it had jurisdiction to make the children wards although they were outside England and Wales. Their British nationality made them amenable to the protective parens patriae jurisdiction wherever they were. The jurisdiction had to be exercised with extreme circumspection, but the evidence of a risk that the children might be taken into a war zone made its exercise proper. The court relied on A v A and another (Children: Habitual Residence) [2013] UKSC 60 and the established use of wardship to protect children abroad from forced marriage and other grave harm.

2. Statutory gateway and welfare. The local authority satisfied the conditions for leave under Children Act 1989 section 100. There was reasonable cause to believe that, without the inherent jurisdiction, the children were likely to suffer significant harm. The children’s welfare required immediate protective action. The court applied the precautionary approach that it should prevent damage to children which it could not later repair.

3. Without-notice relief. The emergency application was properly made without notice. There were compelling reasons to believe that alerting the parents would compromise the children’s welfare by reducing the prospect of their voluntary return. Wider counter-terrorism considerations could inform the court, but could not displace the paramount importance of each child’s welfare.

4. Reporting restriction. A conventional anonymising reporting-restriction order would not have protected the purpose of the proceedings, since an anonymous account could still have alerted the parents. A temporary anti-tipping-off order was therefore necessary to prevent reporting of the proceedings themselves. It was confined to that purpose, did not prevent reporting of matters already public, and had to be discharged when the children returned to the jurisdiction.

5. The wardship continued by consent, with the passports retained and further case-management directions made. The temporary reporting restriction was discharged. Proceedings otherwise continued in private.

This was a first-instance wardship decision. Baker J made an urgent without-notice wardship order on 5 May 2015. The President later made and varied further urgent orders while the family was abroad, and on 8 May 2015 continued wardship by consent with further case-management directions.