Re W (Children : Abduction: Implementation of Return Order) V

A return order conditional on the mother obtaining permission to enter the requesting state does not become operative, or capable of implementation, until that condition is satisfied. A liberty-to-apply provision concerning timing and implementation does not, without express wording, confer jurisdiction to vary the condition or require the mother to pursue a different immigration application. An ancillary power under section 37 of the Senior Courts Act 1981 depends on an extant substantive right or order. Where the condition precedent remains unsatisfied, the court lacks jurisdiction to compel further visa applications or make implementation directions. Any exceptional difficulty rendering a Court of Appeal order impracticable may require application to that court itself.

The father sought directions to implement a return order concerning two children abducted from Texas to England. The original order required their return to the USA, but the Court of Appeal allowed the mother’s appeal in part and substituted an order providing for return only if she obtained permission from the US immigration authorities to return and enter the USA with the children: [2018] EWCA Civ 664. The mother’s humanitarian parole application was refused, and she declined to make a further visa application.

The father applied for an order requiring her to apply for entry clearance and sought to rely on the liberty-to-apply provision and section 37 of the Senior Courts Act 1981. The central issue was whether the High Court had jurisdiction to give those directions before the condition precedent had been fulfilled.

1. Application dismissed for want of jurisdiction. The Court of Appeal’s order contained a condition precedent: the children were to be returned only if the mother was granted permission to return to and enter the USA with them. Until that condition was satisfied, the return order was not operational or capable of implementation.
2. The provision giving the parties permission to apply as to timing and implementation operated only in relation to matters arising after the condition precedent had been fulfilled. It did not authorise variation of the substantive return order or permit the court to direct what type of immigration application the mother should make.
3. The court rejected the proposed amendment focusing on the outcome of any entry-clearance application. The original order had dealt with the mother’s immigration applications through her undertaking, which she had fulfilled. The Court of Appeal could have required a wider undertaking, but had not done so.
4. Section 37 of the Senior Courts Act 1981 does not create a free-standing jurisdiction. As explained in Goyal v Goyal [2016] EWCA Civ 792, it is ancillary to or supportive of a separate substantive legal right. Since the condition precedent was unsatisfied, there was no extant return order or substantive right capable of supporting such relief. The court therefore had no power under section 37, section 5 of the Child Abduction and Custody Act 1985, the inherent jurisdiction, or section 8 of the Children Act 1989 to compel a further visa application.
5. The judge observed that the Court of Appeal retained a residual power to address an exceptional change of circumstances making its own order impracticable to enforce or impossible to fulfil, referring to Re B (Children) [2001] EWCA Civ 625. Any application on that basis would have to be made to the Court of Appeal.

• Court of Appeal: The mother’s appeal against the original return order was allowed in part. The order was replaced by a conditional return order requiring her prior permission to enter the USA with the children: [2018] EWCA Civ 664.
• Supreme Court: Permission for the father to appeal was refused on 11 February 2019.