C v D (Jurisdiction Based on Nationality)

The High Court retains a protective, rather than custodial, inherent jurisdiction over a British national child living abroad. Its exercise requires great caution where the child is habitually resident in another state and that state’s courts are exercising substantive jurisdiction. Nationality jurisdiction is not confined to extreme cases, but intervention is justified only where the child requires the protection of the English court, including because the child would otherwise be beyond all judicial oversight. A parent’s failure to obtain the outcome sought abroad, difficulty obtaining legal representation, or exhaustion of remedies is insufficient without more. Cogent evidence of a real risk that justice will not be obtained abroad is required. The 1980 Hague Convention does not apply without wrongful removal or retention.

The father applied for orders concerning his daughter, a dual British and United States national habitually resident in Colorado. He sought a temporary return order under the 1980 Hague Convention or the inherent jurisdiction, wardship, a declaration recording the English proceedings, and an anti-suit injunction. The mother opposed the applications on jurisdictional grounds.

The child had been permitted by an English court to relocate permanently to the United States in 2016. The Colorado courts had accepted jurisdiction and remained involved in proceedings concerning the child. The father contended that he had been denied effective justice in the United States and that the child required protection through the English court. The central issues were whether nationality jurisdiction existed and, if so, whether it should be exercised.

1. The applications were dismissed. The 1980 Hague Convention on the Civil Aspects of International Child Abduction had no application. The child had been removed to the United States with the permission of the English court, and there had been no wrongful removal or retention within Art 3.
2. The court had no jurisdiction based on the child’s habitual residence or presence. It did retain a protective jurisdiction based on the child’s British nationality. That jurisdiction was distinct from custodial jurisdiction and could, in an appropriate case, support wardship or a return order.
3. Its exercise required great caution because the child was habitually resident in the United States, the United States courts had substantive welfare jurisdiction, proceedings there remained ongoing, and intervention risked conflicting or unenforceable orders. Those considerations were reinforced by the child’s dual nationality and by the original English permission to relocate, which the father had accepted.
4. The relevant question was whether the circumstances showed that the child required English protection, including whether, without intervention, the child would be beyond all judicial oversight. The father’s inability to secure the result sought, even if he had exhausted available remedies, was insufficient. The evidence showed that he could continue proceedings in Colorado after addressing the outstanding bench warrant.
5. To establish that justice would not be obtained in the United States, the father had to show a real risk arising from incompetence, lack of independence or corruption, supported by cogent evidence. The limited adverse findings made by the Colorado Court of Appeals did not meet that threshold. Nor did the father’s difficulty affording lawyers, since he remained able to litigate in person.
6. The proposed freestanding declaration was discretionary. Although the court had declaratory jurisdiction, the live maintenance dispute was appropriately addressed in the father’s existing appeal against registration of the United States order. The declaration was not the most effective means of resolving that dispute. The anti-suit injunction also failed, and the judge expressed doubt in principle about such relief in child-welfare proceedings.

This was a first-instance determination of the father’s applications. The judgment records related proceedings in England and the United States, but no appeal from the present decision.