QS v RS

The High Court has an inherent jurisdiction based on a child's British nationality, even where the child is outside England and Wales. Its exercise requires extreme circumspection and is confined to exceptional circumstances. The absence of an effective remedy abroad is not, by itself, sufficient. However, jurisdiction may properly be exercised where the child has no secure legal parental status in the country of residence or in England, and England and Wales is the only jurisdiction apparently able to remedy that situation. The jurisdiction is exercised with due regard to the modern emphasis on habitual residence and international comity.

T was adopted in Nepal by the applicant and respondent in 2008 and later lived in Dubai. Following matrimonial and custody proceedings in Dubai, the Dubai Court of Cassation awarded custody to the applicant on the basis that T was not legally his daughter. The evidence indicated that the adoption was not recognised in Dubai or, automatically, in England and Wales.

The applicant applied to discharge wardship. The parties agreed that the English court had jurisdiction in matters of parental responsibility, including on the basis of T's British nationality. The central issue was whether the exceptional circumstances justified exercising the inherent jurisdiction although T was outside England and Wales.

1. Jurisdiction based on nationality. The court accepted that the inherent jurisdiction of the High Court extends to a British national outside the jurisdiction, as recognised in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60. Its exercise requires extreme circumspection because it may conflict with habitual-residence principles, the Family Law Act 1986 and the possibility of competing orders.
2. Exceptional threshold. The court considered the guidance in Re B (A Child) (Habitual Residence) (Inherent Jurisdiction) [2015] EWCA Civ 886. The absence of an effective remedy in the foreign jurisdiction is insufficient on its own. The present case was materially different because T had no clearly recognised legal parents in Dubai or England and Wales.
3. Application. Nepal appeared to be the only jurisdiction recognising the adoption. Dubai's law could not remedy the position, while the English court appeared capable of doing so. Those circumstances were extraordinary and sufficiently extreme to justify invoking the inherent jurisdiction based on nationality.
4. The court accepted the parties' agreement that it had jurisdiction under T's nationality, section 2(a) of the Family Law Act 1986, and article 12(3) of Brussels IIA. The decision was made with deference to the Dubai courts and was not an adverse comment on Dubai law. The draft order was approved and the matter was listed for directions aimed at securing T's legal status.

First-instance decision. No earlier appellate decision is stated in the judgment.