C, Re

Where a child is habitually resident outside the United Kingdom, the inherent protective jurisdiction should be exercised only where the circumstances are sufficiently compelling to require or make it necessary. This is a substantive threshold, not merely procedural caution.

The jurisdiction has a supporting and residual role. Relevant considerations include evidence of peril, delay, the availability of proceedings in the child’s current country, and whether an order would be effective in practice.

The applicant alleged that he was the father of a child born in England and sought contact and return orders after the mother removed the child to Pakistan in April 2021. The mother disputed paternity, did not participate in the proceedings, and maintained that she and the child would remain in Pakistan.

The child was habitually resident in England when the Children Act application was issued, but had become settled and habitually resident in Pakistan by the time of the High Court application. The issues were whether jurisdiction existed under the 1996 Hague Convention or the Family Law Act 1986, whether the inherent jurisdiction could be invoked based on British nationality, and whether the existing proceedings should continue.

1. The High Court dismissed the application under the inherent jurisdiction and dismissed the related private law Children Act application.

2. The child was habitually resident in England and Wales when removed and when the Children Act application was issued. By the date of the High Court application, after about two years living continuously and being settled in Pakistan, she was habitually resident there.

3. The court therefore had no jurisdiction to make a return order under article 5 of the 1996 Hague Convention or section 3 of the Family Law Act 1986. Article 7 did not apply because Pakistan was not a signatory. Alternatively, its conditions were not met because the child had lived in Pakistan for more than one year, the applicant knew her whereabouts, he delayed applying for two years, and she was settled there.

4. The only possible basis for a return order was the inherent jurisdiction founded on British nationality. Following Re M [2020] EWCA Civ 922, the jurisdiction required circumstances sufficiently compelling to require or make necessary protective intervention.

5. The threshold was not met. There was no evidence of risk or peril in the mother’s care, Pakistan was the appropriate forum, and any English order would probably be futile or difficult to implement. The proceedings should therefore end.