JK (Return Order Under Inherent Jurisdiction)

The High Court may use its inherent jurisdiction to order the return of a British child abroad, including where the child is not habitually resident in the United Kingdom. The jurisdiction is protective. It requires great caution and circumstances sufficiently compelling to make protection by return necessary. The restrictions in the Family Law Act 1986 concern defined private-law orders and do not govern public-law orders. A local authority’s intention to begin care proceedings after return does not itself invalidate a protective application. Practical arrangements for the child’s return do not amount to placing the child in the authority’s care. The appeal was dismissed.

J was born in Thailand while her parents were there to avoid the involvement of English children’s services. The parents later returned to England, leaving J in Thailand with informal carers. The local authority applied under the inherent jurisdiction for J’s return, wardship and passport orders, intending to issue care proceedings after her return.

The High Court ordered J’s return. The father appealed with the mother’s support. The issues were whether the proposed order impermissibly circumvented the statutory scheme and whether the circumstances were sufficiently compelling to justify exercising the protective jurisdiction.

1. Appeal dismissed. The High Court had jurisdiction under the inherent jurisdiction to order the return of a British child abroad. That jurisdiction derives from the Crown’s protective relationship with British subjects and may operate even where the child is not habitually resident in the United Kingdom. The 1996 Hague Convention did not prevent reliance on domestic jurisdiction where no Contracting State had substantive jurisdiction.
2. The restrictions in sections 1(1)(d), 2(2) and 3(1) of the Family Law Act 1986 applied to the defined private-law orders within section 1(1)(d). They did not apply to public-law orders under Part IV of the Children Act 1989. Section 100 of the 1989 Act nevertheless prevented a local authority from using the inherent jurisdiction to place a child in its care, accommodate the child, or determine questions of parental responsibility. Leave was required, and could be granted only where no other legal route could achieve the desired result and there was reasonable cause to believe that the child would otherwise be likely to suffer significant harm.
3. The substantive threshold was high. The court had to approach the jurisdiction with great caution or circumspection and ask whether the circumstances were sufficiently compelling to require or make necessary the exercise of protective jurisdiction. The test was not confined to cases involving abduction, forced marriage, female genital mutilation, or circumstances at the extreme end of the spectrum.
4. The local authority’s intention to commence Part IV proceedings after J’s return was irrelevant where the true purpose of the application was to protect her from significant harm. The return order did not seek to confer an otherwise unavailable care jurisdiction. Permission for social workers to collect J and arrangements for an early hearing were practical measures facilitating protection, not breaches of section 100.
5. The judge was entitled to find the threshold met. The relevant factors included the parents’ recent findings of serious risk to an older child, continuing concerns about substance misuse, their evasion of child-protection scrutiny, failure to comply with drug testing, and J’s unstable care arrangements. The evidence that J appeared well in Thailand did not require a different conclusion.
6. Applying the appellate restraint described in Volpi v Volpi and another [2022] EWCA Civ 464, there was no error of principle, misunderstanding of the facts, or conclusion that no reasonable judge could reach.

• Court of Appeal (Civil Division): [2025] EWCA Civ 1309 — appeal dismissed.
• High Court of Justice, Family Division: Lieven J ordered the return of J to England and Wales under the inherent jurisdiction and made consequential protective and practical orders.