SS v MCP

The High Court’s inherent parens patriae jurisdiction over a child outside England and Wales is exceptional, protective and residual. It may be exercised only where the applicant establishes sufficiently compelling circumstances making its exercise necessary. A routine welfare assessment is insufficient. The threshold ordinarily requires a crisis involving serious harm, such as a threat to life or inhuman or degrading treatment engaging Articles 2 or 3 of the Convention. The jurisdiction must not circumvent statutory limits on orders concerning care, contact or custody under the Family Law Act 1986. Where the threshold is not met, an application for the child’s return or contact must be pursued in the court of primary jurisdiction.

The father applied for orders requiring the return to England of his daughter, who had lived in India with her maternal grandmother since 2018. He also sought contact and orders concerning the child’s care. The court had previously stayed the proceedings while referring a jurisdictional question concerning Article 10 of Brussels 2 bis to the Court of Justice of the European Union.

The Court of Justice held that Article 10 did not retain jurisdiction where a child had acquired habitual residence in a third State following abduction. The remaining jurisdictional question fell to be determined under Article 14 and English law. The father then sought to rely on the High Court’s inherent parens patriae jurisdiction. The central issue was whether the circumstances were sufficiently compelling to justify its exercise despite the statutory restrictions and the child’s residence in India.

1. Jurisdiction under Brussels 2 bis. The Court of Justice had held that Article 10 did not apply where a child abducted to a third State had acquired habitual residence there. There was no applicable bilateral treaty with India. Article 7 of the 1996 Hague Convention likewise did not retain jurisdiction because the removal was not to another contracting State. Jurisdiction therefore fell to be determined under Article 14 and the laws of England and Wales. The court had already concluded that Articles 8 and 12, and sections 1–3 of the Family Law Act 1986, supplied no jurisdictional basis.
2. Substantive threshold. Following the principles identified in Re M (A Child) [2020] EWCA Civ 922, the jurisdiction had to be approached with great caution and circumspection. The applicant bore the burden of proving circumstances sufficiently compelling to require or make necessary the exercise of the protective jurisdiction. Only after that threshold was crossed could broader welfare questions be considered.
3. The threshold was not satisfied by an ordinary dispute about residence, custody or contact, nor by a general welfare case. The evidence did not show that the child was in peril or that a crisis involving serious harm had arisen. The child was thriving in India, and India had an accessible and functioning family justice system.
4. The inherent jurisdiction could not be used to circumvent the statutory scheme. In particular, it could not be deployed as a procedural route to obtain care, contact or custody orders which the Family Law Act 1986 prohibited the court from making in the circumstances.
5. Even on an ordinary welfare assessment, removal from the child’s established home was not shown to be required. The father’s application dated 4 August 2020 was dismissed, and the child ceased to be a ward of court. The mother was permitted to withdraw her application dated 26 June 2019.

The judgment records the court’s earlier decision dated 6 November 2020, [2020] EWHC 2971 (Fam), and a reference to the Court of Justice of the European Union. It is not an appeal judgment.