M (A Child)

Where a British child is habitually resident abroad, the nationality-based inherent jurisdiction is residual and must be exercised with substantive, not merely procedural, circumspection. It is available only where circumstances are sufficiently compelling to require the English court’s protective intervention. The court must consider whether effective protective remedies are available in the child’s home state and must address material welfare evidence.

The jurisdiction must not be used to bring a child to England in order to conduct a welfare or care enquiry which would evade the jurisdictional limits imposed by the Family Law Act 1986. A return order is not justified where the court cannot properly assess the comparative welfare consequences of removal.

A, a 13-year-old British child, had lived in Algeria with her father and his family for more than 12 years. The mother applied for wardship, alleging violence and a risk to A’s welfare. The High Court found that A lived in a household where fear and violence were accepted, made her a ward, and ordered her return to England so that her welfare and future living arrangements could be assessed. The order is reported as Re A (A Child) (Inherent Jurisdiction: Parens Patriae, FMPO and Passport Orders) [2020] EWHC 451 (Fam).

The father appealed. He contended that the English court was not required to protect A because protective measures existed in Algeria, that the judge had failed to consider material consular evidence, and that the return order improperly circumvented the jurisdictional scheme in the Family Law Act 1986.

1. Appeal allowed unanimously. Moylan LJ, with whom Baker and Henderson LJJ agreed, set aside the order requiring A to be brought to England. The wardship proceedings were dismissed, and the passport order necessarily fell away.

2. The inherent jurisdiction based on British nationality survives subject to the limits imposed by the Family Law Act 1986. Following the carefully considered obiter observations in In re B (A Child) [2016] AC 606, the jurisdiction is not confined to cases described as dire or at the furthest extreme. Nevertheless, the court may exercise it only where circumstances are sufficiently compelling to require, or make necessary, English protective intervention. That substantive threshold gives practical content to the need for great caution and circumspection.

3. The three potential objections identified in In re B (A Child)—conflict with an international scheme, conflicting decisions, and unenforceability—are reasons for caution, not a complete test. The court must also ask whether protection is in fact needed from the English court. Here, the judge had not considered the expert evidence of Algerian remedies and agencies capable of investigating and protecting A. Nor had he addressed the material Foreign and Commonwealth Office welfare report, which did not raise concerns about A’s health or welfare. Those omissions undermined both the factual findings and the decision to intervene.

4. The return order also cut across the statutory scheme. Its express purpose was to bring A to England so that the court could decide her welfare and living arrangements, including who should care for her. That would either require an impermissible care order or use A’s presence to obtain a welfare jurisdiction which Parliament had withheld while she remained abroad. The court could not properly decide that removal to England, likely followed by local-authority accommodation, served A’s welfare without a sufficient comparative welfare assessment.

• Court of Appeal (Civil Division): Allowed the father’s appeal, set aside the return and passport orders, and dismissed the wardship proceedings: [2020] EWCA Civ 922.
• Family Division of the High Court: Made A a ward of court and ordered her return to England for an assessment of her best interests and living arrangements: [2020] EWHC 451 (Fam).