JB v D

The High Court may exercise its inherent or parens patriae jurisdiction to protect a British child outside England, even where another country has jurisdiction over the substance of the parental dispute. The jurisdiction is subject to great caution because of international comity, possible conflicting decisions and enforcement difficulties, but it is not confined to cases at the extreme end of the spectrum. Where protection requires practical action in England, the court may act as a conduit for the child’s return to the country of habitual residence. It may also retain a parent’s passport where necessary to secure compliance with existing orders and prevent evasion of their enforcement.

The mother applied for orders concerning SJ, aged nine, who was believed to be in Algeria with her paternal family. Earlier proceedings had determined that SJ was habitually resident in Poland and that she should live there with her mother. The father had retained SJ in Algeria in breach of orders made by the English and Polish courts.

The issues were whether the Hague Convention proceedings remained relevant, whether the High Court had jurisdiction under its inherent or parens patriae jurisdiction, whether it should order SJ’s return to Poland, and whether the father’s passport should remain with the Tipstaff to secure compliance.

1. Jurisdiction. The court held that it had jurisdiction under the inherent jurisdiction and, alternatively, the parens patriae jurisdiction to protect SJ. The jurisdiction was founded on her British nationality and the practical need for protection by an English court, since her father lived in England and was in breach of an English order.
2. The court applied the guidance in Re B (A Child) [2016] UKSC 4. Exercise of the jurisdiction required great caution because it might conflict with an international jurisdictional scheme, produce conflicting decisions or result in unenforceable orders. Those concerns did not arise with sufficient force here. The jurisdiction was not restricted to cases that were dire, exceptional or at the extreme end of the spectrum.
3. The Polish court remained the court with responsibility for resolving the parental dispute because SJ was habitually resident in Poland. The English court nevertheless could act as a conduit for her protection and return. The unusual combination of wrongful changes in care, the father’s breach of orders, his residence in England and SJ’s British citizenship justified intervention.
4. Following the staged and practical approach illustrated by HH v SH [2016] EWHC 1252 (Fam), the court ordered SJ’s return to Poland. It also continued the passport injunction. A passport order was a proper exercise of the inherent jurisdiction where the father’s departure to a non-contracting state would frustrate enforcement of the English and Polish orders. The order was made subject to a penal notice.

Earlier proceedings determined that SJ had become habitually resident in Poland and should live there with her mother: [2015] EWHC 1926 (Fam). The present court made protective and enforcement orders, including an order for SJ’s return to Poland and continuation of the passport injunction.