SA (A Child) (Inherent Jurisdiction Local Authority)

A local authority requires leave under section 100 of the Children Act 1989 before invoking the High Court’s inherent jurisdiction concerning a child. Leave may be granted only where the desired result cannot be achieved by another available order and there is reasonable cause to believe that, without the inherent jurisdiction, the child is likely to suffer significant harm. The court will not order a child’s return from abroad merely because care proceedings are pending. Evidence must establish the statutory threshold, including the child’s present risk of significant harm. The court may also decline to exercise any possible inherent power of its own motion where the local authority neither has nor seeks parental responsibility.

A local authority applied urgently for leave to invoke the High Court’s inherent jurisdiction to secure the return of a nine-year-old child from Saint Kitts while care proceedings were pending. Earlier, an emergency protection order had been made in respect of the child and her older brother, and a separate application for location and collection orders had been refused.

The local authority did not seek an interim care order for the child. It proposed instead that she remain at home under an interim supervision order, while asserting that her parents’ difficulties principally concerned older children. The central questions were whether the statutory conditions for leave under section 100 of the Children Act 1989 were met and whether the court should order the child’s return of its own motion.

1. Application refused. The local authority failed to establish the statutory conditions for leave to invoke the inherent jurisdiction.
2. Section 100(4) required the court to be satisfied both that the desired result could not be achieved through an order of a kind specified in section 100(5), and that there was reasonable cause to believe that the child would otherwise be likely to suffer significant harm. The court considered that an interim care order could be sought, thereby conferring parental responsibility while leaving the child in the parents’ care. This meant that the first condition was not clearly established.
3. In any event, the evidence did not establish a present risk of significant harm in Saint Kitts. The child was staying with extended family for a limited Christmas holiday. The local authority’s own case was that the significant concerns principally arose in relation to older children. The threshold in section 100(4)(b) was therefore not met.
4. The court considered whether it could order the child’s return of its own motion because she was subject to care proceedings and her welfare might be served by returning her to England. It was not satisfied that the circumstances justified that course where the local authority neither had nor sought an order conferring parental responsibility. Even if such a power existed, it would not be exercised on the facts at that stage.
5. The application under section 31 was to proceed alongside the proceedings concerning the child’s brother and was transferred back to the district judge. The local authority could renew its application if circumstances changed, particularly if it later sought a care order.