LB Waltham Forest v X, Y, Z & Ors (Inherent Jurisdiction)

The High Court may exercise its nationality-based inherent jurisdiction to protect a British child abroad where the child requires that protection, although the jurisdiction must be exercised with caution. Relevant considerations include possible conflicts with foreign jurisdiction, conflicting decisions and enforceability. The need for caution is not decisive where there is a very high risk of forced marriage or female genital mutilation. Protective orders may address conduct occurring outside England and Wales. A local authority seeking to invoke the inherent jurisdiction must obtain permission under section 100 of the Children Act 1989. A without-notice application requires compelling evidence that notice would materially jeopardise the child’s protection or the effectiveness of the court’s orders.

The local authority applied without notice for permission to invoke the inherent jurisdiction in respect of two girls who were in Somaliland. It sought wardship, summary return orders, Forced Marriage Protection Orders and Female Genital Mutilation Protection Orders. One girl was a British citizen; the other had a claim to British nationality through her mother and was accepted by the Passport Office as entitled to travel documentation.

The application was prompted by evidence that the girls faced a very high risk of forced marriage and female genital mutilation. The central issues were whether the court had jurisdiction based on nationality, whether the applications should proceed without notice, and whether the protective orders should be made despite the girls’ limited or absent residence in England and Wales.

1. Permission and without-notice procedure. The local authority satisfied the requirements of sections 100(3) and 100(5) of the Children Act 1989, and the relief sought did not contravene section 100(2). Notice to the mother was dispensed with because there was clear evidence that it would create a significant risk of flight and frustrate protection of the girls. The evidential principles in Re A (A Child) [2016] EWHC Civ 572 were satisfied.
2. Nationality-based inherent jurisdiction. The court accepted the summary in Surrey County Council v NR and RT (Wardship: Without Notice Return Order) [2017] EWHC 153 (Fam). The inherent jurisdiction may be exercised in respect of a British child outside the jurisdiction where the child requires the court’s protection. The jurisdiction is not confined to cases at the extreme end of the spectrum, but must be exercised with great caution because of possible conflicts of jurisdiction, conflicting decisions and unenforceability.
3. The court applied the principles in A v A and another (Children: Habitual Residence) [2013] UKSC 60 and Re B (A Child) [2016] UKSC 4. It was satisfied that both girls were British nationals or entitled to be treated as such, and that both required protection. The very high risk of forced marriage and female genital mutilation justified exercising the jurisdiction notwithstanding that one girl had never lived in England and Wales and the other had not lived there for eleven years.
4. The protective orders were not subject to the same additional circumspection because their statutory terms could relate to conduct outside England and Wales. The court relied on paragraph 63(2)(a) of the Family Law Act 1996 and paragraph 1(4)(a) of Schedule 2 to the Female Genital Mutilation Act 2003. Wardship and the protection orders were therefore made. The orders were purely protective and did not prescribe care, contact, education or medical treatment.