JK (Return Order Under Inherent Jurisdiction)

This is an appeal against an order by Lieven J on the application of a local authority for the return to this country of a young child, J, now aged 9 months, who is currently in Thailand. The appeal is brought by the child’s father with the support of her mother.

At the conclusion of the hearing, we informed the parties that the appeal would be dismissed, for reasons to be given at a later date. This judgment sets out my reasons for agreeing with that decision.

I take the following summary of the background facts substantially from Lieven J’s judgment.

J’s parents have had very significant involvement with children’s social care over many years. Between 2005 and 2018, the mother had five previous children taken into care. The father also has children with whom he has no relationship. The parents’ long-standing problems include poor mental health, alcohol and substance misuse, association with risky individuals, criminality and domestic abuse, all of which have been found by the courts to impact upon their ability to ensure the safety and welfare of children in their care.

The parents started a relationship in 2019. In 2023, the mother gave birth to her sixth child, the father’s fourth. In April 2024, he was made subject to care and placement orders and was subsequently adopted. Also in April 2024, the parents were arrested for robbery. In June 2024, a test at her GP’s surgery revealed that the mother was pregnant again, with an estimated delivery date of 9 January 2025. The GP informed children’s services about the pregnancy.

On 16 September 2024, when the mother was twenty-four weeks pregnant, the parents travelled to Thailand, with the aim, as now accepted on their behalf, of avoiding the removal of their baby at birth. When the local authority became aware of their departure, it was decided to close the case but to re-open it in the event that the parents returned to England. The Thai authorities were notified of the risks and a marker was placed on the parents’ passports so that the UK authorities would be notified if the parents booked a return flight.

On 26 December 2024, the mother gave birth to J in Thailand. On 9 January 2025, the police in England were informed that the mother had given birth to J, but at that stage the information was not passed on to the local authority.

On 11 June 2025 the police received notification that the parents had a flight booked returning to Manchester on 12 June 2025. When the parents arrived, they were arrested for concealing the birth of a child. At first the mother maintained that she had miscarried before travelling to Thailand. During police interviews, however, they confirmed that J had been born. They told the police that they had returned to the UK to renew their visas and had left the baby with friends, X and Y, in Thailand. They were released on bail subject to conditions including that they should not leave the country.

In a joint meeting with the police and social workers on 16 June, the parents provided further details of the people with whom they had left the baby. During the meeting, the social worker was concerned that the father was under the influence of substances. A video call was arranged between the social worker, the parents and X and Y. The social worker was concerned that the man, X, seemed intoxicated. He showed the social worker a baby, whom the local authority accepts was J. She seemed well, healthy, and appropriately dressed. The house where she was apparently living appeared clean and tidy. On 18 June 2025, the local authority was supplied with a copy of J’s birth certificate, which wrongly stated that she was the mother’s first child.

On 19 June, the local authority filed an application in form C66 stating: “The local authority is applying to the court to invoke the inherent jurisdiction to make J a ward of court, to make an order for the return of J to the United Kingdom and an order permitting the local authority to seize the parents’ passports. The local authority is also seeking leave of the court to make the application ex parte.” In a statement in support, the allocated social worker stated that the local authority was seeking the child’s return “as a result of her being habitually resident in the UK jurisdiction”. She added

“In the alternative, if the court is not satisfied that J is habitually resident in England & Wales, she is a British citizen and therefore the court would have the power to make an return order under the inherent jurisdiction of the High Court, and the local authority in those circumstances would seek the court’s permission to invoke the inherent jurisdiction of the High Court on the basis that there is no other statutory [instrument] that could be utilised to facilitate J’s safe return, for the following reasons:-

a.

There is no one exercising parental responsibility for [the child] in Thailand.

b.

J’s circumstances in Thailand are very difficult to evaluate.

c.

J’s parents will reside in the UK for at least the short term; and

d.

Therefore, a holistic evaluation of J’s welfare is better placed to take place in the UK.”

On 20 June 2025, at a hearing before HH Judge Pates sitting as a deputy High Court judge without notice to the parents, the local authority applied for, and was granted, an order making J a ward of court and a passport order in respect of the parents’ passports. Case management directions were given for a substantive hearing on the application for a return order.

On 23 June 2025 the local authority was informed by the Foreign, Commonwealth & Development Office (“FCDO”) that the address the parents had given for X and Y was insufficiently specific for the property to be identified and that the British Embassy was liaising with the Thai authorities about what steps they would take in respect of the baby. On 25 June, the FCDO informed the local authority that the Thai authorities were willing to assist in returning J to this country, provided correct details of her whereabouts were divulged.

On 26 June 2025 X contacted the local authority and said that J was no longer in their care because they had only agreed to look after her for ten to twelve days. He said that she was now with a friend of the father. In statements filed in these proceedings, the parents stated that J had moved to a childcare facility or orphanage during the week and was spending weekends with X and Y.

At a further hearing before Gwynneth Knowles J on 2 July, the parents were ordered to undergo drug testing and file a report by 11 July 2025. That order was not complied with.

On 3 July, Thai Social Services carried out a visit to J. They reported that she was well and meeting her developmental milestones. There appeared to be no concern about her day-to-day care.

In a further statement, the allocated social worker stated that the local authority had applied for an emergency travel document from the FCDO to facilitate J’s return and that, if a return order was made, two social workers would travel to Thailand to collect her. The local authority would then issue public law proceedings with a view to a court hearing being listed on the day J was due to land in England.

The hearing took place before Lieven J on 7 August. Judgment was reserved and handed down on 15 August. I shall consider the judgment in greater detail below. At this stage, I merely state that the judge recorded that the parties were agreed that the court had the power under the inherent jurisdiction to make the order sought by the local authority and, after summarising the case law which I also consider below and the parties’ respective submissions, concluded that in the circumstances she should order the return of the child to this country.

The order made following the hearing included a recital in these terms:

“There is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child she is likely to suffer significant harm for the following reasons:

(i)

The parents fled the United Kingdom whilst the child was in utero in order to avoid the involvement of Children’s Services, the Court having previously found that the parents posed a significant risk of harm to the older children due to drug and alcohol misuse issues, poor mental health and neglect. The parents were not deemed safe carers;

(ii)

J is currently in Thailand with no persons present with parental responsibility for her, her parents having returned to the United Kingdom without her;

(iii)

There is a risk that the parents and J’s carers may attempt to frustrate any efforts by Thai or British professionals to safeguard [the child’s] welfare and/or to have her returned to the United Kingdom.”

In a further recital, it was recorded that the local authority confirmed its intention to issue care proceedings on the child’s return to the jurisdiction. The order recorded that the Court respectfully requested the Thai authorities to assist in taking any steps which may to them appear necessary and appropriate in facilitating the child’s immediate return to England and Wales. Paragraph 1 of the order provided that J “is and shall remain a ward of court until further order”. Under paragraph 4, the parents were ordered to ensure that J be returned to this jurisdiction by no later than 22 August 2025. Paragraph 5 granted permission to the local authority to send two social workers to Thailand to travel with the child to this country. Paragraph 6 imposed certain obligations on the local authority to take steps to facilitate the child’s return (obtaining an emergency travel document, any necessary consents, purchasing flights etc.) Paragraph 8 provided that the proceedings would be listed within 72 hours of the child’s return. A separate order extended the existing passport order on amended terms.

On 18 August 2025, the father filed a notice of appeal against the return order. Two grounds of appeal were advanced, which are considered in detail below. In short, it was asserted that the judge had failed properly to apply the principles set out in case law and secondly that she was wrong to conclude that the facts and presenting concerns gave rise to sufficiently compelling circumstances to permit the Court to exercise its inherent jurisdiction and make a return order. On 21 August, King LJ stayed the order of 15 August pending determination of the application for permission to appeal. On 5 September, I granted permission to appeal and extended the stay until the determination of the appeal or further order.

J remains in Thailand, spending most of her time in the childcare facility. It is significant to note that the Thai authorities have made clear that they do not intend to start proceedings in that jurisdiction and that they will assist the local authority in arranging for J to travel to England.

The Family Law Act 1986

I start this review of the relevant law by considering the jurisdictional rules in the Family Law Act 1986 (“the FLA 1986”). I do so because, hitherto, these provisions have featured prominently in submissions to the judge and to this Court. In fact, for reasons explained below, they are of limited relevance to the present case.

Part I of the FLA 1986 contains provisions as to the jurisdiction to make certain orders relating to children. These provisions have been amended on (by my calculation) over a dozen times in the past thirty-nine years, including changes to accommodate the incorporation into domestic law of regulations under the law of the European Union, in particular Council Regulation (EC) No 2201/2003, known as “Brussels IIA”, (now repealed following the UK’s withdrawal from the Union) and the provisions of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Hague Convention”) which was first incorporated into domestic law on 1 November 2012 and, more recently, by the Private International Law (Implementation of Agreements) Act 2020. The provisions of the FLA 1986 have been described in unflattering terms in a number of judgments and academic commentaries – see for example Re G (Adoption: Ordinary Residence) [2003] 2 FLR 944 (Wall J) at 951 (a "complex, much amended and thoroughly unsatisfactory statute"). In his recent book “Wards of Court and the Inherent Jurisdiction” (Hart Publishing, 2024), Professor Rob George observed that “it is difficult to see how the FLA 1986’s jurisdictional framework could have been drafted in a less clear or straightforward manner”. Unsurprisingly, courts at all levels (including this Court) have struggled at times to interpret its provisions.

Part I of the FLA 1986 applies only to “Part I” orders as defined in s.1. So far as relevant to the arguments raised on this appeal, Part I orders include, under s.1(1):

“(a)

a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order;

. . .

(d)

an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children –

(i)

so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but

(ii)

excluding an order varying or revoking such an order ….”

The provisions governing the jurisdiction of courts in England and Wales to make Part I orders are set out in sections 2 to 7, of which the following are relevant to the arguments raised on this appeal:

“2.

Jurisdiction: general

(1)

A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless –

(a)

it has jurisdiction under the Hague Convention, or

(b)

the Hague Convention does not apply but ... (ii) the condition in section 3 of this Act is satisfied.

…

(2)

A court in England and Wales shall not make a section 1(1)(d) order unless

(a)

it has jurisdiction under the Hague Convention, or

(b)

the Hague Convention does not apply, but

(i)

the condition in section 3 of this Act is satisfied, or

(ii)

the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.”

3.

Habitual residence or presence of child

(1)

The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned – (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom . . . .”

These provisions, however, do not apply to all proceedings relating to children. They are confined to so-called private law orders. As MacDonald J observed in London Borough of Hackney v P and others [2022] EWHC 1981 (Fam) at para 25,

“it is … well established that the scope of the Family Law Act 1986 excludes jurisdiction to make public law orders under Part IV of the Children Act 1989.”

This was first recognised in the early days after the implementation of the Children Act 1989 (hereafter “the 1989 Act”) by Singer J in Re R (Care Proceedings: Jurisdiction) [1995] 1 FLR 711 and confirmed by Hale J in Re M (A Minor) (Care Order: Jurisdiction) [1997] Fam 67. In the latter case, Hale J stated at p.70 that “the exclusion of public law proceedings was clearly intended”, citing in support the Law Commission report on which the FLA 1986 was based. Prior to the implementation of the international instruments considered below, the position was as described by Sir James Munby P in In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] 1 WLR 2670 ("Re E"), at paragraph 23:

“It is a curious fact that the jurisdictional reach of the courts of England and Wales in relation to public law (care) proceedings brought under Part IV of the Children Act 1989 is not spelt out in any statutory provision (as it is in relation to private law proceedings brought under Part II of the Children Act 1989 by sections 2 and 3 of the Family Law Act 1986).”

In the absence of any statutory provision, judges in the Family Division held that the jurisdiction to make Part IV orders should mirror that set out in respect of private law orders in the FLA 1986: see Re R (Care Proceedings: Jurisdiction) [1995] 1 FLR 711 (Singer J) at page 714, Re M (A Minor)(Care Order: Jurisdiction) [1997] Fam 67 (Hale J) at page 71 and Lewisham LBC v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449 (Bodey J) at paragraph 22.

It follows therefore that what has been called the “statutory scheme” of the FLA 1986 does not include public law orders at all. When considering the “statutory scheme” relevant to the jurisdiction of the court to make orders on the application of a local authority pursuant to its statutory duties relating to child protection, it is necessary to consider, first, the provisions of the 1996 Hague Convention, and, secondly, the wider provisions of the Children Act 1989 which, whilst silent as to jurisdiction, contains important provisions which assist in determining when and how the jurisdiction should be exercised.

The provisions governing jurisdiction in the 1996 Hague Convention were extensively analysed and explained by MacDonald J in London Borough of Hackney v P & Ors [2022] EWHC 981 (Fam) and on appeal in that case in the judgment of Moylan LJ (with whom the other members of the Court agreed), reported as London Borough of Hackney v P (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 (“the Hackney case”). Save on one issue, MacDonald J’s judgment was upheld. In conducting their analysis, the judges drew on passages in the Explanatory Report on the 1996 Convention by Professor Paul Lagarde and in the Practical Handbook on the Operation of the 1996 Hague Child Protection Convention, published in 2014 by the Hague Conference on Private International Law.

The salient points in those judgments relevant to the present appeal can be summarised as follows.

The scope of the Convention as defined in Article 3 includes

“(e)

the placement of the child in a foster family or in institutional care ….

(f)

the supervision by a public authority of the care of a child by any person having charge of the child ….”

The Explanatory Report on the 1996 Convention by Professor Paul Lagarde characterised the placements described in Article 3(e) as “somewhat the prototypes of measures of protection”. It is therefore clear, as Moylan LJ held at paragraph 42 of his judgment in the Hackney case, that the 1996 Convention applies to public law proceedings under Part IV of the Children Act.

The provisions as to jurisdiction are set out in Chapter II of the Convention (Articles 5 to 14). Article 5 defines when a Contracting State will have jurisdiction by reference to a child's habitual residence:

“(1)

The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.

Subject to Article 7, in case of a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.”

In the Hackney case at paragraph 43, Moylan LJ described this as “the primary ground of jurisdiction with the other grounds being subordinate to or exceptions from this general rule.”

Articles 6 and 7 provide jurisdictional rules for, respectively, refugee children and abducted children. Articles 8 and 9 make provision for the transfer of jurisdiction from the Contracting State having jurisdiction under Article 5 or 6 to another Contracting State which “would be better placed in the particular case to assess the best interests of the child”. The categories of State to which jurisdiction may be transferred under these Articles include “a State of which the child is a national” and “a State with which the child has a substantial connection” (Article 8(2)(a) and (d)). Articles 11 and 12 establish jurisdictional rules for urgent and provisional measures based on the presence of the child in a Contracting State in which he or she is not habitually resident.

In the Hackney case, this Court held (overruling the interpretation at first instance) that the relevant date for determining jurisdiction is the date on which the proceedings were commenced, although jurisdiction under the 1996 Convention can be lost during the course of proceedings, if it was based on habitual residence and the child has ceased to be habitually resident in England and Wales: see paragraphs 111 to 125 of Moylan LJ’s judgment.

Of particular relevance to this appeal are observations in the Explanatory Report (cited and relied on in the Hackney case). At paragraph 39, Prof Lagarde observed:

“Article 5 is based on the supposition that the child has his or her habitual residence in a Contracting State. In the contrary case, Article 5 is not applicable and the authorities of the Contracting States have jurisdiction under the Convention only on the basis of provisions other than this one (Art. 11 and 12). But nothing prevents these authorities from finding themselves to have jurisdiction, outside of the Convention, on the basis of the rules of private international law of the State to which they belong.”

At paragraph 84, the Explanatory Report added this:

“The rules of jurisdiction contained in Chapter II … form a complete and closed system which applies as an integral whole in Contracting States when the child has his or her habitual residence on the territory of one of them. In particular, a Contracting State is not authorised to exercise jurisdiction over one of these children if such jurisdiction is not provided for in the Convention. The same solution prevails in the situations described in Article 6, where the child has his or her residence in a Contracting State. In the other situations the mere presence of the child gives rise to the application of Articles 11 and 12, but these articles do not exclude the broader bases for jurisdiction that the Contracting States might attribute to their authorities in application of their national law; only, in this case, the other Contracting States are not at all bound to recognise these broadened bases for jurisdiction which fall outside of the scope of the Convention. The same thing is true, for even stronger reasons, for the children who do not have their habitual residence in a Contracting State, and who are not even present in one.”

The references to the “the rules of private international law of the State” in paragraph 39 and to “national law” in paragraph 84 plainly include the rules governing the inherent jurisdiction of the High Court considered below.

Although the 1989 Act does not expressly define the jurisdiction to make a care or supervision order, it includes several provisions relevant to the issues in this appeal.

Part III of the 1989 Act (containing sections 16B to 30) is headed “Support for Children and Families provided by Local Authorities in England”. It imposes on local authorities a series of general and specific obligations to children, young people and their families. S.17 is headed “Provision of services for children in need, their families and others”. S.17(1) provides:

“It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a)

to safeguard and promote the welfare of children within their area who are in need; and

(b)

so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.”

Part IV of the 1989 Act (comprising sections 31 to 42) contains provisions for the family court to make orders placing a child in the care of, or under the supervision of, a local authority. Subsection 31(1) and (2) provide:

“(1)

On the application of any local authority or authorised person, the court may make any an order

(a)

placing the child with respect to whom the application is made in the care of a designated local authority; or

(b)

putting him under the supervision of a designated local authority.

(2)

A court may only make a care order or supervision order if it is satisfied—

(a)

that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)

that the harm, or likelihood of harm, is attributable to—

(i)

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)

the child’s being beyond parental control.”

S.31(8) provides:

“The local authority designated in a care order must be

(a)

within whose area the child is ordinarily resident; or

(b)

where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.”

Of relevance to this appeal, it should be noted that, although a care order can only be made in favour of a local authority that falls within the definition of a “designated” authority, an application for a care order may be made by any local authority. In practice, of course, it is difficult to envisage circumstances in which a local authority would apply for a care order unless either the child was ordinarily resident in the local authority’s area or the circumstances leading to the application being made took place within its area. In the present case, the respondent local authority plainly falls within the latter category.

Of particular relevance to this appeal, however, is section 100 of the 1989 Act, headed “Restrictions on use of wardship jurisdiction”:

“(1)

Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2)

No court shall exercise the High Court’s inherent jurisdiction with respect to children:

(a)

so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)

so as to require a child to be accommodated by or on behalf of a local authority;

(c)

so as to make a child who is the subject of a care order a ward of court; or

(d)

for the purposes of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3)

No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4)

The court may only grant leave if it is satisfied that

(a)

the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)

there is a reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5)

This subsection applies to any order

(a)

made otherwise than in the exercise of the court’s inherent jurisdiction, and

(b)

which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).”

It follows, therefore that the relevant “statutory scheme” in these circumstances is as follows:

Under the national law of England and Wales, the High Court may exercise its inherent jurisdiction in respect of a child who is a British subject even though the child is outside the jurisdiction. The principle was first expressed by Lord Cranworth LC in Hope v Hope (1854) 4 De GM & G 328 and the rationale summarised by Lord Pearson in In re P (GE) (An Infant) [1965] Ch 568 at page 587:

“It is clear from the authorities that the English court has, by delegation from the Sovereign, jurisdiction to make a wardship order whenever the Sovereign as parens patriae has a quasi-parental relationship towards the infant. The infant owes a duty of allegiance and has a corresponding right to protection and therefore may be made a ward of court: Hope v Hope. Subsequent cases confirm that that is the basis of the jurisdiction.

An infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection, and the English court has jurisdiction to make him a ward of court.”

Prior to the implementation of the 1989 Act, there were a number of different provisions under which a child could be placed in the care of the local authority, including via wardship pursuant to section 7 of the Family Law Act 1969. The effect of the 1989 Act was to replace those provisions with a single route – the application by the local authority for a care or supervision order under section 31(1) – and a single set of threshold criteria under section 31(2), hence the restrictions imposed by section 100. It is, however, open to a local authority to seek to invoke the inherent jurisdiction to support its powers and obligations under Part III of the 1989 Act and under orders made under Part IV to achieve results which could not otherwise be achieved. Orders made under the inherent jurisdiction on the application of a local authority include declarations as to the lawfulness of medical treatment or medical procedures, injunctions to restrain publicity which would be harmful to the child, and orders designed to prevent the child associating with a dangerous adult.

It has also been invoked by local authorities seeking to secure the return to this country of a child who is perceived to be at risk of significant harm. In Lewisham London Borough Council v D (Criteria of Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449 (Bodey J), for example, a local authority sought the return to England of a child who had been taken to the Gambia where evidence suggested he was at risk of significant harm. The child was made subject to an interim care order (the court holding that it had jurisdiction to make the order as he was habitually resident in England) and the local authority was granted leave to apply under the inherent jurisdiction for an order that he be returned. In Re M (Wardship: Jurisdiction and Powers) [2015] EWHC 1433 (Fam), a local authority was granted orders under the inherent jurisdiction to secure the return of four children who had been taken out of the UK and were travelling via Turkey and Moldova to Syria, possibly to join Islamic State. Sir James Munby P observed (at paragraph 32):

“cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world.”

In recent years the power to order the return of a British subject child who is outside the jurisdiction has been considered by the senior courts on several occasions, in particular by the Supreme Court in A v A (Children Habitual Residence) [2013] UKSC 60 and Re B (Habitual Residence Inherent Jurisdiction) [2016] UKSC 4 and by this Court in Re M (A Child) [2020] EWCA Civ 922. All three of those cases concerned applications by one parent for the return of children abducted to, or retained in, a foreign country by the other parent. They did not involve an application by a local authority.

In A v A, a mother applied under the inherent jurisdiction for the return of four children retained by their father in Pakistan. Three of the children had been born in England, the fourth in Pakistan. It was accepted that there was power under the inherent jurisdiction to order the return of a child. The issues were, first, whether the youngest child, who had never been present in England, was nevertheless habitually resident in this country and, secondly, whether irrespective of his habitual residence the court could order his return by reason of his nationality. The Supreme Court was unable to determine the first issue, holding that an order under the inherent jurisdiction for a child’s return fell within the scope of Brussels IIA (then in force), but the question whether Brussels IIA required physical presence as a prerequisite of habitual residence was, at that time, not acte clair and would therefore have required a reference to the Court of Justice of the European Union. The Court held, however, that an order for the return of a child who is a British subject could be made under the inherent jurisdiction and did not fall under section 1(1)(a) or (d) of the FLA 1986.

The question was whether it was appropriate to exercise the jurisdiction in the circumstances of the case. Baroness Hale of Richmond, giving the judgment with which the majority of the Court agreed, accepted (at paragraph 64) the submissions of counsel that there were a number of important general considerations which may militate against the exercise of the jurisdiction. These included the fact that

“it is inconsistent with and potentially disruptive of the modern trend towards habitual residence as the principal basis of jurisdiction; it may encourage conflicting orders in competing jurisdictions; using it to order the child to come here may disrupt the scheme of the 1986 Act by enabling the child's future to be decided in a country other than that where he or she is habitually resident.”

Lady Hale acknowledged that those were all reasons for “extreme circumspection in deciding to exercise the jurisdiction” but added that “all must depend on the circumstances of the particular case”. The case was remitted to the High Court judge to determine whether the jurisdiction should be exercised in that case.

In Re B (Habitual Residence Inherent Jurisdiction), the applicant was the same sex partner of the child’s mother who had been involved in caring for the child during their relationship and after it broke down had regular contact. The mother then left the country with the child to live in Pakistan. Initially unaware that the child had been removed, the applicant applied for shared residence and contact under the 1989 Act and then, when she discovered what had happened, applied under the inherent jurisdiction for the child to be made a ward of court and for an order for her summary return. The first instance judge (Hogg J) held that the English courts had no jurisdiction under the FLA 1986 because the child was no longer habitually resident in this country and that the “dire circumstances” required for making an order for the child’s return under the inherent jurisdiction had not been made out. Her decision was upheld by this Court. On appeal to the Supreme Court, however, the majority (Baroness Hale, Lord Wilson and Lord Toulson, Lord Clarke of Stone-cum-Ebony and Lord Sumption dissenting) held that the court had jurisdiction under the FLA 1986 because the child had been habitually resident in England at the date on which the application under the 1989 Act had been issued. Having so decided, it was therefore unnecessary for the Court to determine whether the alternative ground under the inherent jurisdiction had been made out. The Justices proceeded, however, to make a series of obiter observations which have been extensively relied on in subsequent cases.

In their joint judgment, Baroness Hale and Lord Toulson said (at paragraph 59):

“It is … one thing to approach the use of the jurisdiction with great caution or circumspection. It is another thing to conclude that the circumstances justifying its use must always be “dire and exceptional” or “at the very extreme end of the spectrum”. There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders. It is, to say the least, arguable that none of those objections has much force in this case: there is no applicable treaty between the UK and Pakistan; it is highly unlikely that the courts in Pakistan would entertain an application from the appellant; and it is possible that there are steps which an English court could take to persuade the respondent to obey the order.”

Having cited Lord Pearson’s dictum in In re P (GE) (An Infant) quoted above, they continued (at paragraphs 60-62):

“60.

… The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to “cases which are at the extreme end of the spectrum”, per McFarlane LJ in In re N (Abduction: Appeal) [2021] EWCA Civ 1086 ….

61.

There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality based inherent jurisdiction may run counter to the concept of comity ….

62.

If a child has a habitual residence, questions of jurisdiction are governed by the framework of international and domestic law described by Lord Wilson in paras 27 to 29. Conversely, Lord Wilson has identified the problems which would arise in this case if B had no habitual residence. The very object of the international framework is to protect the best interests of the child, as the CJEU stressed in Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22. Considerations of comity cannot be divorced from that objective. If the court were to consider that the exercise of its inherent jurisdiction were necessary to avoid B’s welfare being beyond all judicial oversight (to adopt Lord Wilson’s expression in para 26), we do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity.”

Lord Wilson said (at paragraph 53):

“I do … agree with Lady Hale and Lord Toulson when, in para 60 below, they reject the suggestion that the nationality-based jurisdiction falls for exercise only in cases “at the extreme end of the spectrum”. I consider that, by asking, analogously, whether the circumstances were sufficiently “dire and exceptional” to justify exercise of the jurisdiction, Hogg J may have distracted herself from addressing the three main reasons for the court’s usual inhibition about exercising it. In para 59 below Lady Hale and Lord Toulson identify those reasons and I agree that arguably none of them carries much force in the present case. To my mind the most problematic question arises out of the likelihood that, once B was present again in England pursuant to an order for her return, the appellant would have issued an application for orders relating to care of her or contact with her. The question would be whether in such circumstances an order for her return would improperly have subverted Parliament’s intention in enacting the prohibitions comprised in sections 1(1)(d), 2(3) and 3(1) of the 1986 Act. Or, in such circumstances, should the interests of the child prevail and indeed would Parliament have so intended?”

In his dissenting judgment, with which Lord Clarke agreed, Lord Sumption (at paragraph 81) described the continued existence of the inherent jurisdiction, including the making of orders for the return of a child to this country, as “something of an anomaly”. He continued (at paragraph 82):

“Such orders have been made in two classes of case, both of which can broadly be described as protective. The first comprises abduction cases before the enactment of a statutory jurisdiction to deal with them. The second comprises cases where the child is in need of protection against some personal danger, for example where she has been removed for the purpose of undergoing a forced marriage or female genital mutilation. All of the modern cases fall into this last category.”

Lord Sumption made three further comments:

“84.

First, the jurisdiction is discretionary, and should not be overturned in the absence of some error of principle or misunderstanding of the facts, unless the judge has reached a conclusion that no judge could reasonably have reached.…

85.

Secondly, the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme. If, as Lady Hale and Lord Toulson suggest, the use of the inherent jurisdiction is not reserved for exceptional cases, the potential for it to cut across the statutory scheme is very considerable. I have no doubt that it would do so in this case. In the first place, it would fall to be exercised at a time when the child will have been with her mother in Pakistan for at least two years, and will probably have become habitually resident there. Secondly, it seems plain that if an application under the inherent jurisdiction had been made by, say, an aunt or a sister of the respondent, there could be no ground for acceding to it. It is necessary to make this point in order to remind ourselves that it is to protect her relationship with the child on the basis that she should be regarded as a co-parent that the appellant is invoking the inherent jurisdiction of the court. The real object of exercising it would be to bring the child within the jurisdiction of the English courts (i) so that the court could exercise the wider statutory powers which it is prevented by statute from exercising while she is in Pakistan, and (ii) so that they could do so on different and perhaps better principles than those which would apply in a court of family jurisdiction in Pakistan. Thirdly, this last point is reinforced by the consideration that the appellant’s application in the English courts is for contact and shared residence. This is not relief which the statute permits to be ordered under the inherent jurisdiction, in a case where there is no jurisdiction under the Council Regulation or the 1996 Hague Convention ….

86.

Third, if there were grounds for believing the child to be in danger, or some other extreme facts justifying the exercise of the inherent jurisdiction, it would no doubt be possible in the exercise of the court’s inherent jurisdiction to direct an independent assessment of the situation of the child in Pakistan. Unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country ….”

In Re M, the child, who was a British national, was taken to Algeria as a baby where she lived with her father and his family for over ten years. Her mother then applied to the High Court to exercise its inherent jurisdiction by making her a ward of court on the grounds that she had suffered harm inflicted by the father. At first instance, the judge made her a ward and ordered that she be brought to England for an assessment as to her best interests. But on appeal to this Court his order was set aside.

In his judgment, Moylan LJ (with whom Henderson and Baker LJJ agreed) conducted an extensive review of the earlier cases. At the outset, he observed (paragraph 43):

“The court's inherent jurisdiction is, of course, not statutorily defined. It is also a jurisdiction which can potentially apply in a very wide range of circumstances and under which the court can make "many orders relating to children", as referred to by Lady Hale, at [26], in A v A …. Context is, therefore, very important for any analysis of the circumstances in which and the form or manner in which it is appropriate for the jurisdiction to be exercised.”

Further on in the course of his analysis, at paragraph 61 he made the following observation about the provisions of section 1 of the FLA 1986:

“I would also suggest that, whilst the power which the court is purporting to exercise is clearly important and may be determinative, the court will need to consider whether the order which it is proposing to make is, in reality, an order within s.1(1)(a) or, in particular, s.1(1)(d) ….”

At paragraph 105, Moylan LJ expressed his conclusion as to the test to be applied when deciding whether to exercise the jurisdiction to order the return of a child:

“105.

In my view, following the obiter observations in In re B, whilst the exercise of the inherent jurisdiction when the child is habitually resident outside the United Kingdom is not confined to the "dire and exceptional" or the "very extreme end of the spectrum", there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction. If the circumstances are sufficiently compelling then the exercise of the jurisdiction can be justified as being required or necessary, using those words as having, broadly, the meanings referred to above.”

He continued:

“106.

In my view the need for such a substantive threshold is also supported by the consequences if there was a lower threshold and the jurisdiction could be exercised more broadly; say, for example, whenever the court considered that this would be in a child's interests. It would, again, be difficult to see how this would be consistent with the need to "approach the use of the jurisdiction with great caution or circumspection", at [59]. It is not just a matter of procedural caution; the need to use great caution must have some substantive content….

107.

The final factor, which in my view supports the existence of a substantive threshold, is that the 1986 Act prohibits the inherent jurisdiction being used to give care of a child to any person or provide for contact. It is also relevant that it limits the circumstances in which the court can make a s.8 order. Given the wide range of orders covered by these provisions, a low threshold to the exercise of the inherent jurisdiction would increase the prospect of the court making orders which would, in effect, "cut across the statutory scheme" as suggested by Lord Sumption in In re B, at [85]. This can, of course, apply whenever the jurisdiction is exercised but, in my view, it provides an additional reason for limiting the exercise of the jurisdiction to compelling circumstances. As Henderson LJ observed during the hearing, the statutory limitations support the conclusion that the inherent jurisdiction, while not being wholly excluded, has been confined to a supporting, residual role.”

Later, when setting out his reasons for allowing the appeal, Moylan LJ observed (paragraph 134) that the judge “did not consider the provisions of the 1986 Act and how they impacted on his decision whether the inherent jurisdiction should be exercised.” Noting the recital in the judge’s order to the effect that the child should be brought to this country "so that an assessment can be made in a place of safety as to her best interests and living arrangements", Moylan LJ observed:

“136.

It is clear from this recital, and indeed the provisions in the order dealing with A's care, that the court was embarking on a welfare enquiry, which would include making orders dealing with arrangements for her care. Whilst no order had yet been made providing for A's care when she was in England, it is inevitable that the judge would have had to make such an order prior to her arrival. This was why the judge required the Local Authority urgently to address the question of A's accommodation, "including whether either of A's parents are able to care for A" and, if not, what "other accommodation is available"; and why the parents were also required to set out their proposals for A's care so that a decision could be made at the next hearing. An order providing for her care needed to be made before A arrived here because the necessary arrangements needed to be in place. Such an order would either have conflicted with the provisions of the 1986 Act or, if it gave care to a Local Authority, would have conflicted with s.100 of the 1989 Act.

137.

However, even if no such order was made … the clear purpose of the order was to enable the English court to undertake a welfare enquiry for the purposes of deciding who should care for A and, as acknowledged by Ms Kirby [the mother’s counsel], to seek to vest this court with jurisdiction to undertake this exercise by procuring A's presence in England. In my view, this would be using the inherent jurisdiction directly for the purpose of avoiding the effect of the 1986 Act and would, in the circumstances of this case, improperly have subverted Parliament's intention (to adopt Lord Wilson's words whilst recognising that this was not his conclusion). I deliberately say, in the circumstances of this case, because I can see that there may well not be a bright line between an order which conflicts with the limitations imposed by the 1986 Act and one which does not. In my view, it would be doing so in this case because the judge's order was expressly for the purpose of enabling this court to decide who should care for A and whether here or in Algeria.”

In GC v AS (No.2) [2022] EWHC 310 (Fam), Poole J summarised the principles derived from the appellate authorities in these terms (at paragraph 29):

“The jurisdiction is protective. Whilst there may be many circumstances in which it might be said that children habitually resident and present abroad need protection, the exercise of the parens patriae jurisdiction is to be confined to those cases in which there are circumstances sufficiently compelling to make it necessary to protect the children, in this case by their being removed from Libya and returned to England. Other measures must be insufficient. If it is to be exercised "with great caution or circumspection", then the jurisdiction cannot be exercised in every case where it would be in the best interests of a child habitually resident and physically present abroad to be returned to the jurisdiction of England and Wales.”

That case, like A v A, Re B and Re M, involved an application by one parent seeking the return to this country of a child being retained abroad by another family member. In Re D (Wardship Jurisdiction Cutting Across Statutory Schemes) [2024] EWHC 1658 (Fam), Henke J had to consider the use of the inherent jurisdiction on an application by a local authority. Re D concerned a 4 year old girl who had been born and lived her entire life in Iraq. Some years earlier, her father, who was resident in the UK, had been found to have been involved in the death of another child, and, it was alleged, posed a risk to D. At an earlier hearing, another judge had made an order on the application of the local authority under the inherent jurisdiction for D to be brought to the UK. The mother then applied to set aside those orders and her application was granted by Henke J.

After an extensive review of the case law, Henke J reached the following conclusions (paragraphs 93-97):

“93.

….I consider that in this case the court properly granted the local authority permission to make an application in relation to D under the inherent jurisdiction. After all, the relevant statutory criteria were met.

94.

I further consider and so find that the inherent jurisdiction applied to D as a British national. As a British national abroad in the circumstances that existed at the time the court was seized, she was in real danger and at grave risk of harm for the reasons I have set out in paragraph 91 above. The court was acting to protect a British national who could not be protected by any other statutory means. In the circumstances of this case, the inherent jurisdiction was being accessed as a truly residual jurisdiction to act protectively in relation to a child for whom it had jurisdiction.

95.

I accept, however, that just because a court has jurisdiction that does not mean that the court should exercise that jurisdiction. In my view, the argument that the orders in this case cut across the statutory scheme goes to the question of how that jurisdiction should be exercised in this case, applying the judgment of Lord Sumption in Re B (above) at paragraph 85. As Lord Moylan stated at paragraph 43 of Re M (above), "[c]ontext is, therefore, very important for any analysis of the circumstances in which and the form or manner in which the jurisdiction is exercised."

96.

I have reminded myself that I must consider the reality of the application made by the local authority in this case and the orders made by the courts (see Lord Sumption in paragraph 85 in Re B – " The real object in exercising it " - and Lord Justice Moylan ReM at paragraph 61 who, in the context of the FLA 1986 , states that " the court will need to consider whether the order it is proposing to make is, in reality, an order within […]". In my view, in this case the court was not making the orders simply to protect a British national abroad. This case is, in my view, very different from those where the court acts to protect a child abroad from the risk of a forced marriage or from FGM. It seems to me that protective jurisdiction could be extended to include protecting her from her father, perhaps by stopping him travelling to be with her. However, in my judgment the orders in this case went too far. They sought to compel D's return to this jurisdiction. Those orders seeking to compel return were made so that the local authority could exercise their public law duties to safeguard and protect her as a child in need in their area and so that public law proceedings could be taken in relation to her….That is a use of the inherent jurisdiction which cuts across the statutory scheme in this case and its jurisdictional boundaries.

97.

….The reality is that those orders cut across a statutory scheme, applying paragraph 61 of Re M. The fact that in Re M the issue was whether it cut across the statutory scheme of FLA 1986 does not, in my view, diminish the principle which lies behind the decision and paragraph 61 of the judgment. The court must look at the reality of the situation. The reality of this case is that the purpose of the assessment in the context of this case was to see whether public law orders were required. Those were orders which the local authority could not apply for in relation to D whilst she remained out of the jurisdiction. Given that as a matter of fact, the events since 25 September 2019 can only have aggravated the risk, the reality was that the assessment would be a precursor to public law orders. I agree with the submission that the reality of this case is that, from the start, the local authority have sought inherent jurisdiction orders with a view to securing public law orders in relation to D. In the circumstances of this case, although the residual inherent jurisdiction did exist in this case to protect D, I have decided that it ought not to have been exercised. I frankly acknowledge that from a child protection perspective that is counter intuitive. I see the force of the Guardian's argument that the orders have protected D from her father who on the findings of Mr Justice Moor is a risk to any child in his care. However, I have reminded myself that local authorities do not have a roving child protection mandate and that their duties and powers are circumscribed by their having the jurisdiction to exercise those powers and observe those duties. Hence, after long and hard deliberation, I have had to conclude that D was a child who had never been present in the jurisdiction and that the local authority was seeking her return to enable them to exercise a statutory jurisdiction which was not available to them had she remained abroad.”

Having set out the facts, Lieven J summarised the appellate authorities cited above. After quoting paragraph 105 of Moylan LJ’s judgment in Re M (“there must be circumstances which are sufficiently compelling”), she said that this was the test that she intended to apply. After quoting paragraph 137 of the judgment in Re M, she observed (paragraph 50):

“As I have set out above, in both A v A and Re B the Supreme Court had the provisions of the Family Law Act 1986 carefully in mind in reaching their conclusions about the use of the inherent jurisdiction. As Moylan LJ acknowledges, there may well not be a bright line, and to some degree it is inevitable that the exercise of the inherent jurisdiction in these circumstances will cut across the 1986 Act. However, binding authority from the Supreme Court says that the jurisdiction continues to exist.”

The judge then cited paragraphs 96-97 of Henke J’s judgment in Re D, on which the parents’ representatives had heavily relied, and observed (paragraphs 53-54):

“53.

…. it is not disputed that the jurisdiction to make a return order exists. After that, whether the jurisdiction is exercised must depend on the facts of the particular case. Henke J’s reasoning depended on the facts of the case.

54.

I do not accept that the facts of Re D were analogous to the present ones. The risk to the child came primarily from the father, and he was in the UK not in Iraq. The risks in Iraq were merely those of being in a highly unstable country with considerable challenges, nothing specific to the child. The issues in the present case are entirely different and relate entirely to the child being left in the care of her parents, where there is considerable evidence suggesting that they pose a risk to a young and vulnerable child.”

Drawing the threads of the case law together, Lieven J concluded (paragraph 55):

“In my view what the case law establishes is:

a)

The High Court has the power under the inherent jurisdiction to order the return of a child who is a UK citizen to the UK even where that child is not habitually resident in the UK;

b)

That power must be exercised with “great caution or circumspection”, Re B at [59];

c)

There must be circumstances that are sufficiently compelling to require or make it necessary to exercise the jurisdiction, Re M at [105];

d)

In determining whether to exercise the jurisdiction the Court must have close regard to

(i)

The existence of protective measures in the other country, both in terms of the Court and the social care system;

(ii)

The factual circumstances of the child;

(iii)

The relationship with the Family Law Act and the potential to illegitimately avoid its effect.”

The judge then summarised the parties’ submissions. The local authority, supported by the guardian, submitted that the high test in Re M was met in the light of the risks posed by the parents, given the history and their efforts to avoid the scrutiny of children’s social services, and failure to work open and honestly with the local authority. The parents relied on the reports from the Thai authorities that J was doing well and thriving, and the fact that they were only separated from her because of the passport order and court proceedings. On behalf of the mother it was submitted that the local authority’s intention to apply for an interim care order and risk assessments overstepped the line between the appropriate use of the inherent jurisdiction and the statutory scheme. On behalf of the father, counsel had relied on Re M and Re D. The judge recorded (at paragraph 64):

“I asked him whether he was submitting that a local authority could never obtain a return order under the inherent jurisdiction where the grounds were child protection, with the intention of issuing public law proceedings once the child was returned. He accepted that there was such a jurisdiction but submitted that any case would have to be at the very high end of the spectrum of concern. This was not a case of abduction or abandonment.”

In giving the reasons for her decision, the judge started at paragraph 67 by rejecting the argument that the local authority’s application overstepped the line:

“To the degree that Mr Rees was submitting that Henke J in Re D was finding that there was no jurisdiction to make such orders where what was envisaged by the LA was a care order application when the child returned, I do not think that can be correct. Henke J made clear that she accepted there was a jurisdiction. The issue was whether she should make the order on the facts of the case.”

The judge proceeded to set out the factors for and against the order sought by the local authority. The factors she identified in favour of the order were:

On the other side, the judge noted that:

The judge then set out her conclusions in the following terms:

“83.

To make the order sought I have to proceed with great circumspection, and only if I find that the circumstances are sufficiently compelling so that it is necessary for J should I allow the use of the inherent jurisdiction.

84.

I also need to be conscious that I am, to some extent, cutting across the statutory scheme in the Family Law Act 1986. Having regard to Mr Barraclough and Mr Rees’ submissions that I should not simply order J’s return in order to carry out a risk assessment, it seems to me that the risk in Thailand must be so manifest, that it becomes necessary for her to return for her safety. To that degree “cutting across” the statutory scheme seems to me to be inevitable.

85.

Having considered all the evidence I have reached the conclusion that the high test is met. These are parents who have very recently been found to have posed a significant risk to their last child. There is considerable evidence of highly concerning drug-taking (referred to in [the previous child’s] proceedings) and criminality. There is no evidence that their behaviour, and therefore the risk, has changed. The parents have gone to very great efforts to evade scrutiny by the LA, not just by going to Thailand but by apparently taking steps to hide the fact the mother remained pregnant.

86.

The parents have a significant history of drug use. They had the opportunity to show that was no longer the case by undertaking the drug testing. Instead they have breached a court order and refused to do the drug tests. The excuse that the mother did not want to lose hair is little short of nonsensical given what is at stake here. I therefore draw the adverse inference that they continue to misuse drugs.

87.

The parents have left J in Thailand with some apparently recent friends, whose commitment to J seemed to be very short-lived. They could have arranged so one of them came to the UK whilst the other stayed with IH, but rather they chose to leave J in an unstable placement and both come to the UK.

88.

In my view, J is at very significant risk in Thailand in these parents’ care. Although I have great respect for the Thai authorities when faced with parents with this level of deceit and who have such limited connection with Thailand, it seems to me wrong that I should simply leave J in the hope that she will be protected by the Thai authorities.”

The appellant father’s case on appeal was presented by Mr Matthew Rees KC leading Mr Callum Brook. As noted above, two grounds of appeal were put forward.

Under ground 1, it was said that the judge failed to properly apply the principles set out in Re M and Re D by:

It should be noted, however, that Mr Rees accepted before the judge, and before us, that a local authority could obtain a return order under the inherent jurisdiction where the grounds were child protection, with the intention of issuing public law proceedings once the child was returned, albeit only in a case “at the very high end of the spectrum of concern”.

Under ground 2, it was contended that the judge was wrong to conclude that the facts and presenting concerns gave rise to sufficiently compelling circumstances to permit the Court to exercise its inherent jurisdiction. In particular, she

The appeal was supported on behalf of the mother by Mr Karl Rowley KC and Mr Nicholas Sefton. They did not endorse the appellant’s argument that the effect of Lieven J’s order was to place the child in the local authority’s care. They did submit, however, that the driving force behind the order was to facilitate a welfare enquiry and that, in the light of Re M and Re D, this purpose was contrary to the statutory scheme. They submitted that there was no evidence that J was suffering harm nor sufficient evidence that the previous concerns about the parents’ conduct and care of the older children gave rise to any current risk to J. Overall, the concerns relied on by the local authority did not satisfy the test of “sufficiently compelling circumstances” upon which to sanction the removal of a child from the country where she has spent her whole life.

On behalf of the local authority, it was argued by Ms Kate Burnell KC and Ms Nicola Brown that the judge properly directed herself as to the legal principles and applied with care the need to exercise caution or circumspection. Ms Burnell submitted that Moylan LJ in Re M had been clear that the jurisdiction was being used to subvert Parliament’s intention in the circumstances of that case. The judge in the present case had been entitled to conclude that it was one where there was no “bright line”, as Moylan LJ identified, and was one where the order sought by the local authority did not conflict with the limitations imposed by the 1986 Act. Ms Burnell contended that it could not be correct that the existence of the residual protective jurisdiction of the High Court would turn upon whether the local authority intends to issue care proceedings once the child was present in England and Wales. The primary purpose of the local authority’s application in this case was to seek to exercise a protective duty towards J as a British national, in the context where she had been effectively abandoned in Thailand with no person exercising parental responsibility for her and was now living in what was, in effect, a children’s home. In respect of ground 2, Ms Burnell submitted that the judge, applying the correct test, had carried out the necessary evaluation of the relevant factors for and against exercising the jurisdiction, that she was entitled to conclude that the circumstances were sufficiently compelling to justify making the order, and that this Court should not interfere with that evaluation.

On behalf of the guardian, Ms Ruth Kirby KC leading Mr Jonathan Rustin submitted that, on the binding authority of A v A, the parens patriae jurisdiction can be exercised to make a return order in respect of a British child abroad who is not habitually resident in England. The jurisdiction is based on the Crown’s obligation to protect its British citizens abroad where the circumstances of that citizen are, per Moylan LJ in Re M, sufficiently compelling. Such orders are not forbidden by any of the relevant provisions of the FLA 1986. Observations that such orders cannot be made where the intention is that on the child’s return the local authority will take proceedings under Part IV of the Children Act are misconceived, based as they are on Lord Sumption’s obiter comments in his dissenting judgment in Re B. This places an unnecessary restriction on the simple order to return or to convey a British citizen in need of protection which the Supreme Court has confirmed as being a permissible use of the jurisdiction. Ms Kirby cited authorities in which, she asserted, return orders had been made under the inherent jurisdiction notwithstanding the fact that further proceedings were plainly contemplated – see, for example, Re M (Children) [2015] EWHC 1433 (Fam) (Sir James Munby P) and, most recently, M v U & Anor (Rev1) [2025] EWHC 1821 (Fam) (MacDonald J). Ms Kirby went so far as to submit that the reference by Moylan LJ at paragraph 107 of Re M, to the need for sufficiently compelling circumstances being supported by the requirement to avoid cutting across the statutory scheme of the FLA 1986, was contrary to the principles identified by the Supreme Court.

Ms Kirby submitted, however, that Lieven J’s summary of the applicable principles at paragraph 55 of her judgment was correct. Having done so, she then applied the principles to the facts of the case in a paradigmatic way which could not be challenged in this Court.

The inherent jurisdiction continues to play an important role in our family justice system. The primary purpose for exercising the jurisdiction is to provide protection to children where their welfare requires it. Because of its historic parens patriae origins, it extends to all children who are British subjects wherever they may be. In the modern era, they are scattered all over the world.

There are significant limits on the jurisdiction. These include those imposed by sections 1(1)(d), 2(2) and 3(1) of the FLA 1986. But these only extend to those orders defined in section 1(1)(d) – giving care of a child to any person or providing for contact with, or the education of, a child. There are many other orders made under the jurisdiction which are not subject to the FLA 1986 restrictions. As noted above, they do not apply to public law orders. In Re R, supra, Singer J considered the use of the word “person” in section 1(1)(d). He concluded (page 712H):

“‘Person’ in this context, it seems clear to me, means a human individual rather than a corporation such as a local authority, so that Part I orders under the 1986 Act are firmly pointing their face away from the public law jurisdiction of the 1989 Act under Part IV.”

There are also limits imposed by the 1996 Hague Convention. As explained, however, in the Hackney case at [55]-[58], when no Contracting State has substantive jurisdiction (articles 5 and 6), the 1996 Convention does not inhibit national courts from exercising the broader bases for jurisdiction that the Contracting States might attribute to their authorities in application of their national law (such as the inherent jurisdiction of the High Court), but other Contracting States are not bound to recognise these broadened bases for jurisdiction which fall outside of the scope of the Convention.

There are also significant limits on a local authority’s power to invoke the inherent jurisdiction imposed by section 100 of the 1989 Act. It cannot ask the High Court to make an order under the inherent jurisdiction placing the child in its care or allowing it to accommodate a child. It cannot ask the court to make a child who is subject to a care order a ward of court. It cannot obtain an order giving it the power to determine any question relating to any aspect of parental responsibility. It cannot invoke the jurisdiction without the court’s leave. Leave cannot be granted if the local authority could obtain the result it seeks via another legal route. And it cannot be granted unless the local authority can demonstrate that without an order the child would be likely to suffer significant harm.

But these restrictions leave open a range of circumstances in which a local authority is not constrained from seeking to invoke the jurisdiction. Those circumstances include a case, when the 1996 Convention does not apply (as explained above), where a child who is a British national is habitually resident or present in a foreign country and is at risk of significant harm. There is no other remedy available to a local authority in these circumstances. Section 50 of the 1989 Act empowers the family court to make a “recovery order” in respect of a child who is subject to a care order or emergency protection order or police protection and has been unlawfully taken away or is being unlawfully kept away. It does not apply to children who are not subject to a care order or emergency protection order or police protection. Furthermore, as noted by Bodey J in Lewisham London Borough Council v D (Criteria of Territorial Jurisdiction in Public Law Proceedings) at paragraph 30, the terms in which section 50 is drafted make it clear that such an order can only be made in respect of a child who is present in the jurisdiction.

The reason why the local authority is seeking to invoke the jurisdiction is to protect the child from significant harm. That is the very essence of the parens patriae jurisdiction. The hurdle for invoking the jurisdiction is high because, as explained by Baroness Hale and Lord Toulson in Re B, at [59], there are reasons why the court should “approach the use of the jurisdiction with great caution or circumspection”. However, as they went on to say, at [60], the “real question is whether the circumstances are such that this British child requires that protection”. In short, as Moylan LJ said in Re M, at [105] “there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction”.

So much is clear from the authorities. It is unfortunately the case, however, that some uncertainty and confusion has arisen through the references in obiter dicta in Re B to “subvert[ing] Parliament’s intention” (Lord Wilson) and “cut[ting] across the statutory scheme” (Lord Sumption) and the subsequent application of those phrases by Moylan L J in Re M. The uncertainty and confusion are evident in some of the submissions in the present case and, possibly, the judgment of Henke J in Re D. I venture to suggest it may therefore be necessary to reconsider those observations in due course. This judgment is not, however, the appropriate place for such reconsideration because, as explained above, the present case is outside the ambit of the FLA 1986.

In my view the fact that, after the return of J to this country following an order under the inherent jurisdiction, the local authority intends to start proceedings under Part IV of the 1989 Act is irrelevant to any decision whether or not to exercise the jurisdiction. The purpose of seeking an order for the return of J Thailand is not (as this Court held on the facts in Re M and Henke J held in Re D) to confer on the English courts a jurisdiction to make orders which would not otherwise be available. It is, rather, simply to protect the child from significant harm. In Re D, Henke J concluded that the reason for the local authority seeking that case to invoke the inherent jurisdiction for the return of the child was “so that they could exercise a statutory duty to safeguard and protect and so that public law proceedings could begin in relation to her.” The facts of that case were very different to those in the present appeal and I express no view as to whether Henke J’s assessment was correct. I do not read her judgment as advancing as a general proposition that a local authority cannot invoke the inherent jurisdiction to secure the return of the child if it intends thereafter to take care proceedings which the court could not otherwise entertain. If, however, she was holding that in such circumstances inherent jurisdiction can never be invoked because it “cuts across the statutory scheme”, I would respectfully disagree.

In the present case, the purpose of the local authority’s application for J’s return is simply to secure the protection of the child to which she is entitled as a British national. The fact that the local authority intends thereafter to start proceedings under Part IV of the 1989 Act does not invalidate the application.

The fact that the order provided for the local authority’s social workers to travel to Thailand to collect J does not in my view add any weight to the appellant’s contention that the order was an improper use of the inherent jurisdiction. The same applies to the fact that the order provides for a hearing to be listed within 72 hours of her return, from which it is inferred that the court was approving the plan that, in the hours between her arrival in the country and that hearing, J will be accommodated by the local authority. These paragraphs in the order are simply and sensibly making practical arrangements to facilitate the exercise of the court’s protective jurisdiction. They are not, in my view, a breach of section 100 or any other restriction on the use of the inherent jurisdiction.

One feature of the case is that, so far as I can see, none of the orders made by the High Court – the initial order by HHJ Pates, the case management order by Gwynneth Knowles J, or the final order by Lieven J – records in terms that the local authority was granted permission under section 100 to apply under the inherent jurisdiction. In her skeleton argument, Ms Burnell asserted that permission was granted, but I cannot see any specific order to that effect. No other party contradicted Ms Burnell’s assertion, and there is nothing in the documents to indicate that the parents argued that the local authority should not be granted leave. In the order under appeal, Lieven J recorded that the court was satisfied that there was reasonable cause to believe that if the inherent jurisdiction was not exercised she was likely to suffer significant harm for reasons particularised in the order (and set out above at paragraph 18 above). It is to my mind clear that this recital was included to demonstrate that Lieven J was satisfied that the local authority was entitled to be granted leave. It is true that there is no specific reference to whether the result could be achieved by any other order (as required by section 100(4)(a)) but it is plain that no alternative order was available and no one has suggested otherwise.

It follows that I reject the submission that Lieven J failed to apply the relevant legal principles in the ways asserted by the appellant or at all. I would therefore dismiss the first ground of appeal.

I can deal with the second ground of appeal very briefly. It was plainly open to Lieven J on the evidence to conclude that the circumstances were sufficiently compelling to justify making the order. She was acutely aware of the need for “great circumspection”. She carefully identified and elucidated the factors for and against making the order, and explained her reasons for her conclusion. In the absence of some error of principle or misunderstanding of the facts, a judge’s decision about the facts should not be overturned unless the judge has reached a conclusion that no judge could reasonably have reached: per Lewison LJ in Volpi v Volpi and another [2022] EWCA Civ 464, paragraph 2. Lieven J caried out an impeccable analysis of the facts and it would be wholly wrong for this Court to interfere with her conclusion. There was no error of principle, nor any misunderstanding of the facts. It was plainly open to her to reach her conclusion. I would go further and state that, on the evidence put before her, her conclusion was correct.

For those reasons, I would dismiss the appeal.

I agree, and would also endorse the additional observations made by Moylan LJ below.

I also agree with Baker LJ’s judgment but I add a few comments of my own in respect of Re M. As referred to by Baker LJ, the submissions in this case on behalf of the parents placed significant reliance on certain observations of mine in Re M. In response, these led Ms Kirby to submit that, in particular my reference at [107] to what Lord Sumption had said about cutting across the statutory scheme, was inapt and contrary to the principles identified by the Supreme Court.

I agree with Baker LJ that the submissions in this case have raised legitimate questions about those observations. I also agree that this judgment is not the appropriate place for detailed reconsideration because the present case is outside the ambit of the FLA 1986. However, it seems clear that these observations have been given a weight and significance that they do not warrant. This has been demonstrated in the present case because the court’s jurisdiction in respect of public law proceedings and the use of the inherent jurisdiction by local authorities as circumscribed by section 100 of the Children Act do not conflict but support or complement each other. It is also clear, as explained in Hackney and as referred to by Baker LJ in paragraph 81 above, that when no Contracting State has substantive jurisdiction (articles 5 and 6), the exercise by a national court of jurisdiction based on other domestic rules does not conflict with the jurisdictional rules in the 1996 Convention. I would, therefore, suggest that in future references to Re M should focus on the ratio of the decision, at [105] as quoted above), and not on these other observations.