M (Nationality Based Jurisdiction), Re

The nationality-based protective jurisdiction may be exercised in respect of a British child abroad where circumstances are sufficiently compelling to make its exercise necessary. This may arise where the child’s welfare would otherwise remain beyond all judicial oversight, particularly where there is a real risk of breaches of Articles 2 or 3 and the state of habitual residence cannot provide effective protection.

Welfare is the first consideration when determining the relief required. Enforceability remains relevant but is secondary. In an exceptional case, proceedings and a return order may continue without notice, and service may be withheld until implementation, where prior notice creates a real risk that the order will be frustrated and the child exposed to grave harm.

M, a nearly 17-year-old British citizen habitually resident in Somalia, applied through his litigation friend for a summary return order under the inherent jurisdiction. He alleged that he had been retained in Somalia, threatened because he had renounced Islam, and faced risks of serious physical harm, detention in a re-education facility and inadequate state protection.

Cusworth J made a without-notice order requiring M’s return to England and Wales. The matter was then reconsidered because the order was not directed against an identified person, no placement had yet been identified, and notifying M’s parents might frustrate his return. The central issues were whether the nationality-based jurisdiction was available, whether the order should continue and be directed against the parents, and whether notice and service should be withheld.

1. Jurisdiction. The nationality-based protective jurisdiction remained available because the 1996 Hague Convention did not apply to a child habitually resident in a non-Convention state, and the proposed return order did not concern care, contact or education within Family Law Act 1986, s 1(1)(d). The court had to ask whether the circumstances were sufficiently compelling to make exercise of the jurisdiction necessary.
2. That threshold was met. There was strong prima facie evidence that M faced a real risk of serious or fatal harm engaging Articles 2 and 3, that his family could not protect him, and that his welfare would remain beyond all judicial oversight in Somalia. The absence of effective legal and social institutions materially weakened the usual justification for leaving welfare questions to the child’s habitual-residence jurisdiction.
3. Welfare and proportionality. The return order was necessary and proportionate. The interference with the parents’ Article 8 rights was justified by the need to protect M’s absolute Articles 2 and 3 rights. The order did not prohibit the parents’ religious practice; it addressed the evidenced risk arising from the reaction to M’s apostasy and coercion into religious education or practice.
4. Enforceability. Welfare was the first and foremost assessment. Enforceability had to be considered in the circumstances of the individual case but remained secondary. The order was therefore varied so that it was directed against M’s parents.
5. Without notice. There was a real risk that notice would enable the parents to frustrate the order and expose M to grave harm. Subject to rigorous safeguards, the proceedings could continue without notice and service of the return order could exceptionally be withheld until after M’s return. The parents were to have liberty to apply to set aside the order after service.
6. The wardship was continued, a declaration was made that M required the High Court’s protection as a British citizen, and the return order was continued in varied form. M subsequently returned to England and was placed in local-authority accommodation; the proceedings and order were then served on his parents.

First-instance decision. Cusworth J had previously made a without-notice summary return order on 7 July 2025. This court continued wardship, varied the return order, and directed that notice and service be withheld until implementation.