SU & SA (Children)

The High Court’s inherent jurisdiction to protect British children living abroad is not confined to cases described as dire or exceptional. Its exercise remains limited where the children are habitually resident in another country and that country’s courts have jurisdiction and have exercised it. The court must have regard to international comity and avoid deciding welfare issues properly belonging to the foreign court. A short, proportionate protective order may nevertheless be made to preserve an opportunity for an application to the court of habitual residence. A time-limited restriction on renewing British passports may be justified for that purpose.

The case concerned two minor British children who were wards of the English court after their removal to Africa and subsequent relocation to Australia. Their mother opposed renewal of their British passports, fearing that their father might remove them from Australia or arrange marriages for them. Both parents accepted that the Australian courts had jurisdiction over the children’s welfare, and the children were habitually resident there.

The issue was whether the High Court should exercise its nationality-based inherent jurisdiction to prevent renewal of the passports, notwithstanding the Australian court’s welfare jurisdiction.

1. Protective jurisdiction. The authorities establish that the inherent jurisdiction may be exercised to protect a British child abroad where the circumstances require protection. It is unnecessary to impose an a priori requirement that the circumstances be dire or exceptional. The jurisdiction must, however, be exercised with great caution because it may conflict with the jurisdictional scheme of another country, produce conflicting decisions, or result in unenforceable orders. The principles of comity must be understood consistently with the welfare objective of the international framework. [2016] UKSC 4 was treated as providing important guidance.
2. Limits where another court has jurisdiction. Where children are habitually resident in another country, and the courts of that country have jurisdiction and have exercised it, the circumstances in which the High Court should intervene protectively are very limited. The foreign court will ordinarily be able to take the necessary welfare measures. Questions concerning the children’s proposed removal from Australia, relocation and welfare were matters for the Australian court, requiring investigation there.
3. Short-term protective measure. The history of the children’s removal justified a limited interim exercise of the jurisdiction. The court could postpone renewal of the British passports for one month to allow the mother to apply to the Australian court. That course did not intrude upon the Australian court’s jurisdiction and was consistent with comity.
4. Proportionality and order. The temporary restriction engaged the children’s rights under Article 8 but was proportionate. The passports were not to be renewed before 6 April 2017. On that date the children would cease to be wards of court and the restrictions would be lifted, subject to liberty to apply.