GC v AS

The inherent parens patriae jurisdiction may protect British children abroad, but it is an exceptional, residual jurisdiction requiring great caution. The court must be satisfied that circumstances are sufficiently compelling to make protection necessary and must assess whether any order, particularly an order facilitating repatriation, has a reasonable prospect of reciprocal enforcement abroad. The jurisdiction cannot circumvent statutory limitations or provide the primary route to relief where Parliament has established another jurisdictional scheme. A set-aside application under the Family Procedure Rules requires a high threshold. In children proceedings, Henderson abuse is assessed flexibly as part of the overall discretionary exercise, although it may in an appropriate case justify summary disposal. Repeated litigation is not justified merely because a fresh welfare analysis might produce a different result; there must generally be a fundamental change of circumstances undermining the earlier order.

The mother and father had consensually relocated with their three British children to Libya. The children remained there after the mother returned to England. An earlier application for their return was dismissed because the children were not habitually resident in England and there had been no wrongful removal or retention engaging Article 10 of Brussels 2. The children nevertheless remained wards of court through oversight.

The mother later sought to set aside the earlier order and obtain protection under the inherent parens patriae jurisdiction, relying on the dangerous conditions in Libya and expert evidence. The central issues were whether the earlier order should be set aside, whether the protective jurisdiction should be exercised, whether any repatriation order would be enforceable, and whether the renewed proceedings were abusive.

1. Set aside. Under FPR 12.42B and PD 12D, para 8.4, and PD 12F, paras 4.1A–4.1B, the threshold for setting aside an inherent-jurisdiction order is high. The listed grounds are not open to expansion. The welfare ground must be aligned with fundamental change of circumstances: a fresh welfare analysis must be demanded by a change which completely undermines the earlier decision.
2. Henderson abuse. Cause of action estoppel and issue estoppel did not apply because the earlier proceedings concerned the Brussels 2 return jurisdiction whereas the present proceedings concerned protection under the inherent jurisdiction. Children proceedings also require procedural flexibility. The mother’s failure to raise parens patriae earlier could amount to Henderson abuse, but on these facts it was better treated as part of the overall discretion rather than as an automatic preliminary bar.
3. Protective jurisdiction. The jurisdiction extends in theory to British children abroad, but its use requires great caution and circumspection, sufficiently compelling circumstances, and a substantive threshold. It has a supporting and residual role and cannot be used to circumvent statutory limitations in the Family Law Act 1986.
4. Enforcement. The first and principal question in an extraterritorial protective application is whether the foreign authorities have a reasonable prospect of enforcing the order. The court will not make a futile order. The subjective likelihood of compliance by the respondent is generally secondary to the practical prospect that the order will secure protection.
5. Application. The evidence did not establish a major deterioration in Libya or a fundamental change undermining the earlier order. An order seeking assistance from the Libyan authorities would probably be futile because the mother was unlikely to obtain effective enforcement there. The proposed repatriation would also circumvent statutory jurisdictional limits and would treat the inherent jurisdiction as the primary, rather than residual, remedy.
6. Disposition. The mother’s application and the originating wardship application were dismissed. The children were de-warded. The judge encouraged the father to facilitate meaningful contact between the mother and the children.

Court of Appeal. In Re S (Children) [2020] EWCA Civ 515, permission was refused on the proposed additional ground concerning the parens patriae jurisdiction. The present proceedings were subsequently brought at first instance.