H (Child), Re

In wardship proceedings, the child’s welfare remains the governing consideration when the court is asked to enforce, vary or revisit an earlier return order. The court’s flexible welfare jurisdiction is not displaced merely because the order recorded parental agreement.

A child’s own refugee or humanitarian protection status must receive careful and distinct consideration before return to the country from which protection was granted. At the least, return is unlikely to be appropriate unless the court concludes that the child’s circumstances do not justify that protection.

A judge must independently scrutinise a parental agreement where allegations of domestic abuse, a pending asylum claim and uncertainty about overseas safeguards create substantial risks. Separate representation may be necessary to protect the child’s interests.

The father began wardship proceedings seeking the summary return of his ten-year-old son to Pakistan. In July 2015, while asylum claims by the mother and child were pending, Judge Finnerty made a consent order requiring their return and recording an undertaking that the claims would be withdrawn. The child was neither joined nor separately represented.

The mother did not withdraw the claims. Both she and the child were subsequently granted asylum. In February 2016, Judge Bromilow rejected the mother’s challenge to the agreement, held that there had been no material change of circumstances and ordered the consent order to be enforced.

The mother and child appealed. The principal issues were whether the child required separate representation, whether the consent order should have been made, and whether its enforcement was compatible with the child’s welfare and his own refugee or humanitarian protection status.

1. Both appeals allowed. The July 2015 consent order and the February 2016 enforcement order were set aside. The father’s return application was remitted for a complete rehearing before a Family Division judge, with the child joined as a party. Black LJ delivered the judgment, with which Longmore and Moore-Bick LJJ agreed.

2. A return order made in wardship is a welfare order. The child’s welfare therefore remains the governing consideration when the court is later asked to vary, revisit or enforce it. Wardship must respond flexibly to the child’s best interests at the relevant time. The High Court was not deprived of power by section 17 of the Senior Courts Act 1981, nor was intervention confined to strict setting-aside criteria. The court could vary the order on an application or of its own motion if welfare required it.

3. Judge Bromilow failed to address the implications of the child’s own refugee or humanitarian protection status and wrongly concentrated on whether circumstances had materially changed. The status was, at the least, a matter requiring careful weight in the welfare balance because the Secretary of State had accepted a real risk of treatment contrary to article 3 of the Convention. It might constitute a complete bar to return, but the Court of Appeal left that question open for fuller argument, preferably with submissions from the Secretary of State.

4. Re S [2002] EWCA Civ 843 and Re H [2003] EWHC 1820 (Fam) did not establish that a family court could return a child who personally had protection based on a risk to that child. In those cases the children were dependants of their mothers’ claims. At the least, it would be unlikely to be appropriate to order return without concluding that the child’s circumstances did not justify the protection granted.

5. Judge Finnerty had an independent duty to satisfy herself that the agreed return was in the ward’s best interests. The allegations of domestic abuse, the child’s pending asylum claim, his own account of violence and the absence of evidence about the effectiveness of the father’s undertakings in Pakistan demanded particular scrutiny. Parental agreement did not discharge that duty.

6. The only effective means of protecting the child’s interests at the July hearing was to adjourn and join him with separate representation. Separate representation was also required before Judge Bromilow because the child’s status and standpoint were distinct from those of his mother and the case involved significant legal and international complexity.

1. Court of Appeal (Civil Division): By [2016] EWCA Civ 988, allowed the mother’s and child’s appeals, set aside both High Court orders and remitted the father’s return application for a fresh hearing.

2. High Court, Family Division — Judge Bromilow: On 26 February 2016, dismissed the mother’s application to set aside the consent order, granted enforcement and directed the child’s return to Lahore.

3. High Court, Family Division — Judge Finnerty: On 8 July 2015, made a consent order requiring the child’s return to Pakistan and recording parental undertakings, including withdrawal of the asylum claims.