X (A Child), Re

Where there is a real prospect that notice of an application would enable a child to be re-abducted, the court may properly make a location order without notice. The existence of an order made by a court in another part of the United Kingdom is a significant factor supporting that course. Acting in judicial comity, the court may make corresponding orders so as to render the foreign order effective in England and Wales, without intending to interfere with or supersede it. Such orders may include passport and disclosure provisions, with arrangements for the responsible officers or courts to determine subsequently who should retain seized passports.

The father applied without notice in England for a location order and an order requiring disclosure of information about his eleven-year-old son’s whereabouts. The child had been removed by the mother from Scotland to England. Lord Brailsford, sitting in the Court of Session, had made interim orders under sections 35 and 37 of the Family Law Act 1986, including an interdict against removing the child from the United Kingdom and an order for delivery of the child’s passports.

The principal issue was whether the English court should grant relief without notice, both to protect the child from further removal and to make the Scottish order efficacious in England.

1. The application was granted. A standard location order was made, together with passport orders relating to the child and the mother and an order requiring the child’s school to disclose the child’s address and whereabouts.
2. The court was satisfied that proceeding without notice was proper. There was a very real prospect that notice would lead to the mother re-abducting the child, either abroad or to another location within the United Kingdom. The fact that the Court of Session had itself considered it appropriate to make an order was a significant consideration. The court applied the guidance stated in In re A (A child) [2016] EWCA Civ 572, also reported at [2016] 4 WLR 111.
3. Judicial comity supported making the English orders. They were intended to enable the Scottish order to be implemented outside Scotland, rather than to cut across or replace it. The court proceeded on the assumption that the Messenger-at-Arms had no jurisdiction outside Scotland and that the Tipstaff had no jurisdiction outside England and Wales.
4. The Tipstaff was authorised to retain seized passports until the return hearing seven days later. The Tipstaff and Messenger-at-Arms, or the two courts, could then decide which officer should hold them.
5. The judgment was directed to be transcribed urgently at public expense.

The judgment describes an earlier interim order made by Lord Brailsford, sitting in the Court of Session, on 25 January 2017. This was a first-instance application in the High Court; no appellate history is stated.