H (Jurisdiction), Re

The High Court may exercise its inherent jurisdiction to protect a British child whose whereabouts and welfare are unknown, even where the child has never been habitually resident in England and Wales. Nationality alone requires extreme caution, particularly because of possible conflicts of jurisdiction, conflicting decisions and unenforceable orders. There is no absolute requirement that the circumstances be extreme. The court should proceed incrementally: an information order may be justified even though a later application for the child’s return would require a separate assessment. The central question is whether the child requires protection.

The parents were Afghan nationals who had become habitually resident in England. Their son, a British citizen born in Afghanistan, had been placed with an uncle and was later removed from the uncle’s care by his father. Following a fact-finding judgment, the court found that the father knew the child’s whereabouts but continued to withhold that information.

The mother applied for a limited order requiring information about the child’s whereabouts and general circumstances. The jurisdiction to make such an order was common ground. The issue was whether it was appropriate to exercise the inherent jurisdiction where the child had not been habitually resident in England and might no longer be in Afghanistan.

The application was granted. The father was directed to provide information about the child’s whereabouts, movements since 2011 and general circumstances within 14 days.

1. Protective jurisdiction. The court treated the child’s British nationality as a relevant connecting factor, but not as a sufficient reason by itself. The observations in Re A (Jurisdiction: Return of Child) [2013] UKSC 60 and Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 established that the court must be extremely circumspect, while the controlling question remained whether the child required protection.
2. The court identified the reasons for caution as avoiding conflicts of jurisdiction and decisions, and avoiding unenforceable orders. Those considerations did not confine the jurisdiction to extreme cases. Even on that assumption, the present circumstances were extreme because the child’s whereabouts and welfare were wholly unknown and he had been separated from his mother for almost all his life.
3. The court rejected the argument that an information order was necessarily custodial or that making it would commit the court to every later order sought. The court must act in stages. The considerations governing a later application for the child to be brought to England could differ materially from those governing the present information order.
4. Comity did not prevent the order. There had been no effective police or legal activity in Afghanistan since 2011, the mother could not realistically seek a remedy there without knowing the child’s whereabouts, and the child might no longer be in Afghanistan. The absence of a precedent for an order in such unusual circumstances was not a reason for inaction.

The matter was restored for further consideration after the information was provided. Enforcement advice would be given if the order was not obeyed.