ND v K

The inherent jurisdiction of the High Court may be used to protect and secure the return of a British child who is outside England and Wales, even where the child is not habitually resident here and no reciprocal international jurisdiction agreement applies. The jurisdiction must be exercised with extreme circumspection and for a genuinely protective purpose. The court must evaluate the child’s own circumstances, while considering the risks of conflicting decisions, inconsistency with international arrangements and unenforceability. The decisive question is whether the child requires the protective support of the jurisdiction and whether its exercise works in harmony with related foreign laws. Exceptional circumstances may arise where a child has been abducted, is separated from both parents, is in an unfamiliar third country and is exposed to serious welfare risks.

The applicant mother, a refugee living in France, sought protection for her four-year-old son after the respondent father removed him during his first overnight contact. The child was taken from France to England and then Nigeria, where he remained without either biological parent. Nigerian guardianship orders appeared to have been obtained on materially false information. Nigeria was not a party to the 1980 Hague Convention and there was no applicable bilateral agreement with France.

The issue was whether the High Court had jurisdiction under its inherent or parens patriae jurisdiction to make orders designed to secure the child’s prompt return to France, and, if so, whether the jurisdiction should be exercised.

1. Jurisdiction. The court held that the inherent jurisdiction could in principle be invoked on the basis of the child’s British nationality. The Family Law Act 1986 did not exclude an order under the inherent jurisdiction for the return of a British child.
2. Applicable approach. The jurisdiction was not confined by an inflexible requirement that every case be at the extreme end of the spectrum. Nevertheless, its exercise required extreme caution and circumspection. The court had to consider the risk of conflict with the statutory or treaty framework, the possibility of conflicting decisions and the risk of unenforceable orders. Those considerations were safeguards, not an absolute bar.
3. Protective and cooperative purpose. The central question was whether the circumstances required the protective support of the jurisdiction. The court had to focus on the child’s circumstances, not solely on the mother’s distress or the fact that Nigeria was not a Hague Convention state. International comity was understood expansively, requiring consideration of whether English and foreign law could operate together to achieve common protective objectives.
4. Application. L’s circumstances were exceptional and perilous. He had been removed from his sole carer, had never previously spent a night away from her, had been separated from both parents for a prolonged period, was living in an unfamiliar country with uncertain carers, and was exposed to the consequences of deliberate deception and non-disclosure. The evidence indicated that neither parent could secure his protection within the timescale required.
5. The inherent jurisdiction was therefore invoked. The court did not yet make the final return order. A further hearing was directed to refine the declarations and arrangements, including cooperation with the French authorities and the possibility of direct return to Paris rather than England.