A (A Child) (Inherent Jurisdiction: Parens Patriae, FMPO And Passport Orders) (Rev 2)

The High Court may exercise its nationality-based inherent jurisdiction to protect a British child living abroad, including by making the child a ward of court and ordering return to England. The decisive question is whether the child requires the court’s protection, assessed by reference to welfare and the evidence. The jurisdiction must nevertheless be exercised with great caution, having regard to international jurisdictional schemes, comity, possible conflicting decisions and enforceability.

A contested application for a forced marriage protection order requires ordinary fact-finding. The court must establish the facts, identify the statutory protective purpose, assess risks and protective factors, and then adopt the minimum proportionate measures necessary to protect against any established Article 3 risk. A passport order cannot be used coercively to pressure another person to comply with an order and must be limited to the minimum necessary period.

The mother applied to invoke the court’s inherent jurisdiction and parens patriae jurisdiction in respect of her twelve-year-old daughter, who had lived in Algeria since infancy and was a British national. She sought wardship, an order for the child’s return to England, a forced marriage protection order and continuation of passport orders against the father.

The father resisted the applications. He disputed the court’s jurisdiction, denied that the evidence justified a forced marriage protection order and argued that the passport orders unjustifiably interfered with his liberty. The court heard evidence from both parents and considered expert evidence on Algerian law. The central issues were whether the child required protection, whether the evidence established the statutory basis for a forced marriage protection order, and whether continued passport restrictions were necessary and proportionate.

1. Inherent jurisdiction and return order. The court’s inherent jurisdiction is versatile but subject to substantial limits. It may be exercised in respect of a British national outside England and Wales where, on the evidence, the child requires the court’s protection. The jurisdiction is not confined to cases that are dire, exceptional or at the extreme end of the spectrum. The court must proceed cautiously, considering possible conflict with international jurisdictional schemes, conflicting decisions and unenforceability. A’s British nationality, significant harm in the father’s household and continuing exposure to fear and violence engaged the jurisdiction. Her welfare was paramount and she required protection. No conflicting jurisdictional scheme, conflicting Algerian decision or enforceability problem was established.
2. Parens patriae. In exercising the jurisdiction, the court assumes the parents’ rights and duties for the purpose of making the ultimate welfare decision, while parental responsibilities and consultation are not extinguished. A was made a ward of court and ordered to return to England forthwith. The court made no determination about the duration of her stay in England.
3. Forced marriage protection order. The four-stage approach identified in Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190 applied equally to injunctive relief sought under the inherent jurisdiction: factual findings on admissible evidence and the civil standard; determination of the statutory protective purpose; assessment of risks and protective factors; and, if an Article 3 risk is established, proportionate accommodation with Article 8 rights. The evidence concerning a possible forced marriage was unreliable and insufficient at the first stage. The FMPO application was dismissed.
4. Passport orders. Retaining or restricting a passport to prevent a person leaving England and Wales interferes with liberty of movement and cannot be imposed as coercion to secure another person’s compliance. Such an order must ordinarily last only for a comparatively short, bespoke period, with review before expiry unless the need clearly ends at a specified time. Given the father’s prior breaches and risk of departure, continuation was necessary and proportionate until the next hearing, fixed for review at 17.00 hours on that day.