M (Children : Care Proceedings : Passport Order)

An appellate court may use its procedural powers to allow an appeal on the basis of material developments after the order, without determining the substantive grounds.

The court left open whether the inherent jurisdiction permits retention of a person’s passports indefinitely after care proceedings have concluded. It indicated that any post-proceedings passport order would probably require an unusual and extreme case. The court must closely evaluate the risk to the children, the potential harm and whether the serious interference with the passport-holder’s rights is necessary and proportionate. Any permissible order should usually have a defined duration.

The father appealed against Roderic Wood J’s refusal, at the conclusion of care proceedings concerning his seven children, to return his British and Libyan passports. The judge had found that the father could not be trusted and presented a significant risk of taking matters into his own hands.

After the order, the four youngest children moved to Canada without interference. The father cooperated with the local authority and engaged in contact with the older children. The local authority consequently ceased to oppose either the return of the passports or the appeal.

The Court of Appeal considered whether to dispose of the appeal upon that new evidence. The wider questions concerning jurisdiction, proportionality and adequate review of an indefinite passport order were no longer determinative.

1. Appeal allowed. Sir James Munby P, with whom Black LJ agreed, exercised the court’s powers under CPR 52.10 to allow the appeal because of developments after the order. The court did not determine the substantive grounds. It ordered the father’s passports to be returned immediately and set aside all earlier passport orders relating to him, while leaving the relevant paragraph of Roderic Wood J’s order formally undisturbed.

2. The new evidence showed that the younger children had moved to Canada without interference from the father. He had cooperated with the local authority and there was no evidence that he had been untruthful or had attempted to undermine the older children’s placements. The local authority therefore no longer opposed the return of the passports. Those circumstances justified the appellate disposition.

3. The court expressly left the important questions of principle and practice for decision in another case. Without reaching a definitive view, Sir James Munby P indicated that the decisions in Re B (Child Abduction: Wardship: Power to Detain) [1994] 2 FLR 479 and In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843 gave real substance to the argument that the inherent jurisdiction may not authorise an indefinite passport order after the conclusion of care proceedings.

4. If such an order can ever continue beyond the proceedings, it is likely to be justified only in an unusual and probably extreme case. The court must closely evaluate the degree of risk to the children and the harm likely to result if the risk materialises. It must then be satisfied that the serious invasion of the passport-holder’s rights is proportionate and necessary.

5. If a post-proceedings passport order can properly be made, it should usually operate for a defined period rather than indefinitely.

• Court of Appeal (Civil Division): Allowed the appeal on the basis of new evidence, without determining its substantive merits. The court ordered the immediate return of the father’s passports and set aside all previous passport orders concerning him: [2017] EWCA Civ 69.
• High Court of Justice, Family Division: Roderic Wood J refused the father’s application for the return of his passports at the conclusion of the care proceedings. No citation for that decision is stated in the judgment.