GC v AS

The parens patriae jurisdiction may protect a British child who is habitually resident and present abroad, but it must be exercised with great caution or circumspection. The circumstances must be sufficiently compelling to make protection necessary. Separation from a parent, general conditions in the foreign country, or the prospect of a welfare assessment in England will not ordinarily suffice.

The jurisdiction cannot be used to circumvent the statutory scheme governing child arrangements, particularly by securing a child’s return merely so that an English court can decide with whom the child should live or spend time. The court must assess the particular child’s circumstances, including any ongoing or imminent danger, the adequacy of existing care, and whether the proposed order is genuinely protective.

The applicant, the British mother of three children, sought their return from Libya under the High Court’s parens patriae jurisdiction. The children had lived with their father in Libya since 2017 and were neither habitually resident nor physically present in England and Wales.

Earlier proceedings concerning summary return had been dismissed. The Court of Appeal allowed a subsequent appeal against the refusal to consider the independent protective-jurisdiction application and remitted that issue to the High Court. The central questions were whether the jurisdiction should be exercised and, if so, whether the children should be returned to England.

1. Application dismissed. The court declined to exercise the parens patriae jurisdiction and made no order for the children’s return.
2. The jurisdiction was potentially available because the children were British nationals, despite being habitually resident and present abroad. However, the Family Law Act 1986 limited the orders available. The court could not use the inherent jurisdiction to make orders regulating care or contact where the statutory conditions for a child arrangements order under section 8 of the Children Act 1989 were not met.
3. Following the approach in Re M [2020] EWCA Civ 922, the jurisdiction was protective and required circumstances sufficiently compelling to make its exercise necessary. It was to be approached with great caution or circumspection, as emphasised in In re B [2016] AC 606. In most cases there would be an ongoing or imminent danger from which protection was required, and other measures would need to be insufficient.
4. The court had to consider the context and the proposed form of order. An application for return which was in substance designed to enable an English welfare enquiry or decisions about residence and contact could cut across the statutory scheme. That was not a legitimate use of the jurisdiction, although the possibility that welfare decisions would follow a return would not itself prevent an order where the protective threshold was otherwise met.
5. The children were well cared for, educated and medically supported in Libya. Although Libya remained affected by civil conflict and presented general risks, the evidence did not establish an ongoing or imminent threat to these children, nor a high or materially disruptive risk of harm in their particular circumstances. Separation from their mother and the difficulties of indirect contact were insufficient, without more, to justify return.

• Court of Appeal: The mother’s appeal from Mostyn J’s decision was allowed in [2021] EWCA Civ 1223. The independent parens patriae application was remitted for determination by a full-time High Court Family Division judge.
• High Court (Family Division): The application was reconsidered by Mr Justice Poole and dismissed.