D (Wardship: Jurisdiction: Cutting Across Statutory Schemes), Re

A nationality-based inherent jurisdiction may exist in relation to a British child abroad, even where the child is neither present nor habitually resident in England and Wales. It is, however, a residual protective jurisdiction that must be exercised with great caution and only in sufficiently compelling circumstances.

The court must examine the reality and purpose of the orders sought. The inherent jurisdiction cannot be used to secure a child’s return so that a local authority can undertake public law functions which the statutory jurisdiction does not permit it to undertake while the child remains abroad. Orders that cut across the statutory scheme should not be made, even where the child faces grave risks.

The mother applied to set aside a series of wardship, return, passport and ancillary orders made between September 2019 and March 2021 concerning D, who was born in Iraq and had never been present in England and Wales. The local authority had sought to invoke the inherent jurisdiction to secure D’s return and protect her from risks arising from both parents.

The original orders proceeded first on an assumed Brussels IIa jurisdiction and were later continued on the basis of D’s British nationality. The Court of Appeal refused permission to appeal as premature because the High Court had not considered an application to set aside. The central issues were whether the court had jurisdiction, whether the inherent jurisdiction should have been exercised, and whether the orders cut across the statutory scheme governing public law intervention.

1. Jurisdiction existed. D was a British national by reason of section 2 of the British Nationality Act 1981. The nationality-based parens patriae jurisdiction therefore continued to apply, notwithstanding that D had never been present or habitually resident in England and Wales. Jurisdiction could not, however, be founded on habitual residence or presence.
2. Statutory permission was established. The local authority had obtained permission under section 100 of the Children Act 1989. There was reasonable cause to believe that, without the exercise of the inherent jurisdiction, D was likely to suffer significant harm, and the result sought could not be achieved through another available order.
3. The jurisdiction was not properly exercised. The court had to consider the reality and purpose of the local authority’s application and the orders made. Although the orders were expressed as protective measures and included return and assessment requirements, their practical purpose was to secure D’s return so that the local authority could discharge public law duties and commence care proceedings. That purpose crossed the jurisdictional boundaries of the statutory scheme.
4. The grave factual circumstances did not alter that conclusion. The court recognised the serious risks posed by the father and the mother’s inability to protect D, but local authorities did not have a roving child-protection mandate outside the jurisdiction conferred by statute.
5. The court therefore concluded that, although the residual inherent jurisdiction existed, it ought not to have been exercised in this case. The wardship orders and all orders made under that umbrella were to be set aside at a further hearing, together with any consequential applications.

The judgment records that permission to appeal against the earlier orders was refused by the Court of Appeal on 27 October 2023 as premature. The applicant was directed to seek relief from the High Court first. The present judgment determined that application to set aside.