P (Discharge of Passport Order) (Rev 2)

A Tipstaff passport order is an exceptional and intrusive measure. It may be used to prevent abduction, secure attendance at a hearing where there is a real flight risk, or prevent the frustration of an interlocutory order. It must be time-limited, necessary and proportionate.

It must not be retained solely to coerce a party into taking a particular step. The court must keep the order under review and discharge it when its legitimate protective purpose no longer requires the restriction. A separate order, supported by an effective penal notice, may be used to require compliance with a travel-consent obligation.

The mother and father, who were separated and involved in parallel family proceedings in England and Bulgaria, had a child living in Bulgaria with the mother. On 16 March 2020, an order was made requiring the father to provide documents and consents to facilitate the child’s return to England. A Tipstaff passport order also required the father to surrender his travel documents and the child’s documents.

The father applied for discharge. The mother opposed discharge and sought his committal for alleged breaches. The issues before the court included whether continued retention of the father’s documents remained necessary, whether the order had been used coercively, and whether the committal application could properly proceed.

1. Passport order discharged in part. The father’s British passport and Bulgarian identity card were ordered to be returned. The child’s British passport was to remain with the Tipstaff for the time being.
2. A passport order is a potent and intrusive order. It may be appropriate where the court seeks urgently to prevent removal of a child, where there is an assessed risk that contact will be used to remove a child, where attendance at a hearing requires protection against flight, or where execution of an interlocutory order might otherwise be frustrated. The order should be finite and subject to continuing review: B v B [1997] 2 FLR 148; Re S (Financial Provision: Non-Resident) [1996] 1 FCR 148; Re L (A Child), Re Oddin [2016] EWCA Civ 173.
3. The court must not retain a passport solely to coerce a party into taking a particular course of action. Continued retention is also unlikely to be justified after the proceedings in which the order was made have concluded. Any longer retention requires a close evaluation of risk, harm, necessity and proportionality: B v B [1994] 2 FLR 479; Re B (A Child: Evidence: Passport Order) [2014] EWCA Civ 843; Re M (Children) (Care Proceedings: Passport Orders) [2017] EWCA Civ 69; Re A (A Child) [2016] EWCA Civ 572.
4. On the evidence, the father was actively participating in the proceedings, the alleged flight risk was not made out, and retaining his passport to secure his execution of travel documents would be an illegitimate and disproportionate form of compulsion. The proper course was to renew the substantive obligation with a specified deadline and an effective penal notice.
5. The mother’s committal application was dismissed. The penal notice attached to the substantive order was defective, and there were substantial difficulties in proving beyond reasonable doubt that the relevant passports were in the father’s possession or control when the passport order was served. Listing a committal hearing would therefore be disproportionate and futile.
6. The court directed enquiries concerning the Bulgarian proceedings, lis pendens, habitual residence and jurisdiction, including possible judicial liaison through the Hague Network Judges in accordance with the guidance on Direct Judicial Communications. Further directions were to follow.

First-instance decision. No prior appellate decision is stated in the judgment.