K and D (Wardship Without Notice Return Order)

The High Court may exercise its nationality-based inherent jurisdiction over a British child outside England and Wales where the child requires the court’s protection. The jurisdiction must be exercised with great caution and circumspection, particularly where a return order is sought without notice. A without notice application requires compelling, evidence-based reasons, including a real risk that notice would enable the respondent to frustrate the court’s orders or defeat the ends of justice. The court should avoid definitive findings on habitual residence at such an early stage where the issue is disputed. Protective return orders may be made where they do not prescribe care, contact or education and where the child would otherwise remain without effective parental or administrative protection.

Surrey County Council applied without notice for permission to invoke the inherent jurisdiction in respect of two British children, K and D, who were living separately in children’s homes in Northern Cyprus and the Republic of Cyprus. Their mother was in custody in the Republic of Cyprus pending extradition to England, and their father was estranged and unable to exercise parental responsibility. The local authorities in both parts of Cyprus indicated that they could not provide long-term protection and wished the children to return to England.

The local authority relied principally on the children’s British nationality, while also contending that they remained habitually resident in England and Wales for the purposes of the Brussels IIa framework. The central issues were whether the application could properly proceed without notice, whether the court had jurisdiction, and whether the protective jurisdiction should be exercised to secure the children’s return.

1. Permission and without notice procedure. Permission was granted under section 100(3) of the Children Act 1989. The application properly proceeded without notice because there was cogent evidence of a significant risk that the mother would persuade the children to abscond and thereby frustrate the court’s orders. Without notice applications in the Family Division are governed by the same principles as elsewhere. They are appropriate only in cases of genuine urgency or where compelling evidence establishes a real risk to the child’s welfare or to the administration of justice.
2. Jurisdiction. The court considered that continued habitual residence in England and Wales was eminently arguable, including because the removal to Northern Cyprus was arguably wrongful and Northern Cyprus was not another Member State for the purposes of article 10 of Brussels IIa. However, it was inappropriate to reach definitive or even unnecessary interim conclusions about habitual residence at a without notice hearing where the evidence was disputed and incomplete.
3. Nationality-based inherent jurisdiction. The existence of the jurisdiction over British children outside the jurisdiction was established. The applicable question was whether the circumstances showed that the British child required the protection of the English court. The jurisdiction was not confined by an a priori requirement that the case be at the extreme end of the spectrum, but it remained subject to great caution and circumspection because of international comity, possible conflicting decisions and enforceability concerns.
4. Exercise of the jurisdiction. Both children were separated from one another, lacked anyone able or willing to exercise parental responsibility, and were in placements which the relevant authorities could not sustain long term. Their return would enable protective care proceedings to be commenced in England and Wales. The return orders were protective and facilitative. They did not prescribe care, contact or education and therefore did not contravene the statutory limitations in the Family Law Act 1986.
5. The children were made wards of court. The mother was ordered immediately to co-operate with the relevant agencies to secure their return to England and Wales forthwith. The matter was directed to return for an on notice hearing shortly after the mother and children arrived in the jurisdiction.

Not an appeal. The judgment determined a first-instance without notice application in the High Court (Family Division).