SITTING AT THE ROYAL COURTS OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE MCKENDRICK
Between :
BD | Applicant |
- and - | |
MN Re S (A Child) (Disclosure to SSHD) | Respondent |
Ms Annabel Barrons (instructed by Payne Hicks Beach) for the Applicant
Mr William Tyzack and Ms Alexandra Hampton (instructed by Penningtons) for the Respondent
Approved Judgment
This judgment was handed down remotely at 10.30am on 18 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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THE HONOURABLE MR JUSTICE MCKENDRICK
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
McKendrick J :
A discrete issue arises in these proceedings which are brought pursuant to Schedule 1 of the Children Act 1989 (hereafter “the 1989 Act”) and concern an infant, anonymised in the judgment as S. His mother (the respondent) has brought the Schedule 1, 1989 Act application for financial provision for S. She is the applicant in the proceedings, although is referred to in this judgment as the respondent (to the father’s application brought within the proceedings). The father (the applicant) is the respondent to the Schedule 1, 1989 Act application. The applicant seeks the court’s permission to disclose documents filed by the respondent in these private proceedings to the Secretary of State for the Home Department. The respondent resists the application and instead offers the court an undertaking to file and serve any immigration application she makes and submits the application for disclosure should therefore be adjourned. Having considered the matter on the papers I have determined to adjourn the application for disclosure and to accept the respondent’s undertaking. This short judgment endeavours to set out my reasons for arriving at this conclusion.
The applicant is a British citizen who states that he lives and is domiciled in a European country. His case is that he has been ‘non-resident’ in England since April 2016. Since that time he has spent a maximum of up to 90 days in the United Kingdom in any given year. His case is that he is not domiciled or habitually resident in this jurisdiction and he says he now limits his time in this jurisdiction to a maximum of 45 days.
The respondent is an Italian citizen who appears to have been domiciled in Italy. The respondent is married to an Italian national and has an older child. The respondent fell pregnant with S in the latter part of 2024. There was a relationship between the parties, albeit in the context of both parties being married to others. The parties’ relationship broke down in or around February 2025 when the respondent was around three months pregnant. In July of this year the respondent entered the United Kingdom (hereafter “UK”) on a six month tourist visa. It is the applicant’s case the respondent did this with the express intention of giving birth in London to try to seize the jurisdiction of England & Wales in relation to any claims she would bring against the applicant for the benefit of S.
The respondent, then acting as a litigant in person, submitted her applications for a declaration of paternity pursuant to section 55A of the Family Law Act 1986 in June 2025, in relation to the yet unborn child. On 2 July 2025, the respondent appeared in person before HHJ Oliver in the Central Family Court who made various orders. S was born in London on a date in August 2025. On 20 August 2025 the respondent issued an application pursuant to Schedule 1 of the 1989 Act and a related application dated 27 August 2025 for an interim periodical payment/lump sum and provision for her legal fees. At a hearing on 29 August 2025, the order of HHJ Oliver was set aside for lack of jurisdiction and the respondent’s Declaration of Parentage application was dismissed, albeit with a fresh application being deemed the same day. The Court also made a series of directions, including permission for the parties to file and serve statements on the issue of jurisdiction in relation to any declaration of parentage, even though this matter would likely be resolved by the (then) agreed testing regime in any event. Agreed DNA testing took place via Cellmark, and the applicant was confirmed to be the father on 26 September 2025. The Declaration of Parentage proceedings were then compromised with the applicant signing a statutory declaration of parentage.
The Schedule 1 proceedings were transferred to be heard by a judge of the High Court, by HHJ Hess and listed before me on 21 November 2025 with a time estimate of 1 day.
Meanwhile in Italy, the applicant filed an application (ricorso) dated 11 November 2025 in a regional court in Italy on the basis of S’s habitual residence there seeking resolution of welfare and financial matters. The applicant’s case is that his son should live in Italy to permit him to spend more time than he could with him in the United Kingdom.
At the hearing before me, the respondent’s position was that both she and S were habitually resident in England and Wales when the proceedings were issued on 20 August 2025. Reference was made to the terms of paragraph 14 of Schedule 1 of the 1989 Act. It was submitted that it was obvious that this court therefore had jurisdiction. Mr Tyzack’s skeleton argument crisply summarised the mother’s position on this court’s jurisdiction:
This issue can be taken relatively briefly, since there is no doubt that the English court has jurisdiction for the CA 1989 proceedings. [S] was born in London, and England is the only country in which he has ever set foot. As emphasised very recently by Mr Justice Poole in Re CB (Habitual Residence: Child Born and Present Abroad) [2025] 2 FLR 823 (paragraphs 23 and 26), the line of authorities in relation to a child’s habitual residence lays down a clear rule that a child cannot be habitually resident in a country in which he or she had never been present. Our domestic jurisprudence developed out of the CJEU caselaw, in particular Re A (Area of Freedom, Security and Justice) [2009] 2 FLR 1 which highlighted a requirement of physical presence and which was then subject to consideration by the UKSC in Re A (Jurisdiction: Return of Child) [2014] 1 FLR 111. The more recent (post-Brexit) case of UD v XB (Case C-393-18/PPU) removed any remaining doubt (in EU law) that physical presence is required.
The respondent sought interim financial provision and legal costs funding. She opposed the applicant’s application for a stay of these proceedings. She sought directions for the respective Form Es within 21 days, questionnaires and replies within 14 and 21 days respectively and the listing of a FDR. She made a very late application for a Hemain injunction to stay the Italian proceedings.
The applicant’s case was diametrically opposed to this. Ms Katherine Kelsey’s (who appeared at that hearing) position on behalf of the respondent was that “nothing can or should happen today.” She submitted the court could not determine jurisdiction at the hearing not least because the hearing was listed for directions. When I raised with her the fact that S had lived all his life in England and Wales and had never set foot in Italy or another EU country and on this basis the applicant would need to distinguish UD v XB, Ms Kelsey confirmed this was her client’s case. In the alternative he wished to raise a forum conveniens argument that Italy (or another EU country) would be the more appropriate jurisdiction given the very limited connections between the jurisdiction of England and Wales and the respondent. This was particularly the case given that the respondent’s six month tourist visa will expire in January 2026. It was pointed out that as the respondent is married to an Italian citizen S will not automatically receive British citizenship and an application must be made on his behalf. The respondent’s claim therefore that she could remain in the UK on a parental visa dependent on her son’s immigration status was premature and resolution of this issue would take time. Further it was suggested the respondent has used deception contrary to section 24A Immigration Act 1971 when she entered the UK on tourist visa with the intention to remain as the parent of S. I was invited to stay the Schedule 1, 1989 Act application and await developments in the Italian proceedings and/or clarity over the respondent’s immigration status. Ms Kelsey’s helpful note submitted that:
All the above leads to the inescapable conclusion that England & Wales is not the appropriate forum and/or jurisdiction to determine M’s claims and rather the correct forum is the family court in [X], Italy (i.e. M’s hometown). No orders can or should be made here that would interfere with (or pre-determine) the Italian proceedings – especially given the likelihood that M and [S] will have to leave London in early January.
At the hearing, I observed that the challenge to S’s habitual residence in this jurisdiction as of 21 August 2025 would face considerable hurdles. I listed this matter to be determined on the basis of evidence and submissions at a 2 day hearing in early February 2026. The same hearing would deal with any dispute over forum conveniens if this court had jurisdiction. I granted permission to instruct a single joint expert to report to the court on the respondent’s immigration status in the UK. I made orders for interim maintenance and legal services provision until the February 2026 hearing. I accepted the father’s undertaking not to take any further steps in the Italian proceedings and made provision for the respondent’s legal costs to permit her to take advice and to file a response challenging jurisdiction in the Italian proceedings. Relatedly I refused to grant the respondent’s application for a Hemain injunction in Italy. Whilst I considered the applicant’s case on S’s habitual residence as at 21 August 2025 to be very weak, I permitted him to argue that point because: (i) UD v XB was decided in a different context, albeit my provisional view is that habitual residence is a universal test which is unlikely to be contextually different; (ii) a hearing on forum conveniens is likely to be required in any event given the mother’s precarious immigration status; (iii) the applicant will fund the legal argument of both parties; and (iv) the court should be slow to make final orders on jurisdiction at a directions hearing.
Having set out these orders, and refused the applicant’s application for permission to appeal my orders, I then made directions for the applicant’s application for permission to disclose the respondent’s witness statements filed in these proceedings to the Secretary of State for the Home Department (hereafter SSHD). The applicant wishes to disclose certain documents filed by the respondent in these proceedings to the SSHD because he says they are inconsistent with the respondent’s position, implied when entering the UK on a six month visa. No written application had been filed in respect of this issue, but the applicant’s position was trailed in his counsel’s position statement. Mr Tyzack objected to the disclosure and objected to my waiving the requirement for a written application notice. I therefore directed that if the application by the father were pursued it must be filed and served with a skeleton argument by 28 November 2025 and any response by the respondent to be filed and served by 5 December 2025.
The applicant’s submissions are as follows. The respondent is required to leave the UK by 12 January 2026. S has no automatic right to British citizenship through his father’s status as a UK citizen, given his mother’s marriage to an Italian national. The respondent has informed the parties she will apply to regularise her application for S’s British citizenship and she will also apply for a parental visa for the right to remain in the UK as the mother of a British citizen. Ms Barrons quotes the Home Office guidance on Electronic Travel Authorisation (the legal mechanism for the respondent’s permission to enter the UK for six months (in July 2025)) which states that one cannot remain in the UK for more than six months. It is submitted the respondent was not a genuine visitor. It is submitted that is a key issue the SSHD will need to consider and specifically whether the respondent has used deception when she entered the UK.
Ms Barrons then points to various parts of the respondent’s evidence filed since May 2025 to the family court where it is stated words to the effect that the respondent has always wished to make a life for herself in London. Other evidence was filed by the respondent in which reference is made to her intending to move permanently to London. Reference is made to the respondent’s own witness statements filed in August and September 2025 where she gave evidence that:
I proceeded to move to London where my brother could emotionally support me, and where I will continue to live with my son, who is a British citizen
I have always hoped that I could revive my dreams of living in London..
I have every intention of making England and Wales a permanent home for S…and I have no desire or intention to return to Italy.
Ms Barrons notes the terms of section 12 Administration of Justice Act and FPR 2010 12.73 which permit disclosure of material before the family proceedings to specified people and to people with the permission of the court. She submits the information her client wishes to disclose to the SSHD falls within FPR rule 12.73 (1)(b) and requires the court’s permission. She references P Children Disclosure [2022] EWCA Civ 495; 4 All ER 418 and C (A Minor) (Care Proceedings Disclosure) [1997] Fam 76 and the specific factors set out by the Court of Appeal at paragraph 85. She references the Supreme Court decision of G v G [2021] UKSC 9; [2022] AC 544 which emphasises the importance of public policy considerations particularly in the immigration perspective. She submits her client simply wishes for the SSHD to have comprehensive information “when weighting positive assertions by W [the respondent] as to her intentions on entering the UK in July 2025.” She quotes Sir James Munby, P in W (Children) [2017] EWFC 61 at paragraph 7:
The applicable principles are well-known and do not require repetition. I merely observe that, subject always to the imposition of any necessary safeguards and conditions, family courts should not stand in the way of, and should, on the contrary, take all appropriate steps to facilitate, the proper administration of justice elsewhere. This principle is well recognised in the authorities both in relation to the criminal justice system and in relation to tribunals as varied as those dealing with medical discipline and criminal injuries compensation. It is, of course, equally applicable in relation to the civil justice system.
She cites David Rees KC (sitting as a deputy High Court judge) in R v G and another [2022] EWHC 367 (Fam) at paragraph 69:
In reaching this conclusion I have particular regard to the passages from the judgments of Singer J in Re B (Abduction: False Immigration Information) [2000] 2 FLR 835 and of Hayden J in F v M (Joint Council for the Welfare of Immigrants Intervening) [2017] EWHC 949 Fam; [2018] Fam 1to which I was referred by Mr Devereux. Both judges were clear as to the importance of ensuring that significant and material misrepresentations in immigration proceedings are brought to the attention of the relevant authorities. I agree, particularly in circumstances where, as happened here, there has already been disclosure of documents from the immigration proceedings into the family proceedings. I, of course, recognise that the ultimate decision as to whether disclosure should be made in any particular case is a fact-sensitive one, and accept that there may be cases where other factors such as welfare concerns will compel the court to withhold disclosure. However, the family courts are part of a broader justice system and I consider that there is great importance in this court facilitating the proper administration of justice before other courts and tribunals and co-operating with other public bodies concerned with the protection of children. In my view the court should be wary of permitting the confidentiality which attaches to family proceedings to be used to conceal material and adverse findings about a party or their evidence from another public body that has a direct and legitimate interest in those findings.”
She then makes various submissions as to why public policy and S’s best interests dictate the disclosure of the information.
Mr Tyzack’s and Ms Hampton’s written submissions in response realistically offer an undertaking. It is submitted:
Notwithstanding the above, having heard the exchanges during the hearing on 21 November 2025, M entirely recognises the concern of the court that it should not be put in the position to, in effect, ‘look the other way’ whilst she makes an application for leave to remain on a footing, or factual basis, different to that put forward in these proceedings.
Recognising this, M is willing to undertake to provide a copy of her application to the Home Office immediately once filed. If, at this stage, F considers that there has been non-disclosure or otherwise the withholding of material facts, then at stage he should be at liberty to restore his application for further disclosure.
The respondent accepts the Re C supra test at paragraph 85 as set out by Swinton Thomas LJ is the leading authority on this point. Mr Tyzack is particularly exercised in his response on the behalf of the respondent by the disproportionate nature of disclosing 168 pages of evidence from these proceedings in circumstances where the respondent has not yet even made an application to the SSHD for a parental visa. It is submitted on her behalf that:
The skeleton argument on F’s behalf makes a number of observations on purported discrepancies in M’s evidence before the Family Court. With that evidence being, as yet, untested, and no findings having been made on it, and without even an oral hearing of this application, it would be wholly unfair on M for the court to accede to F’s application. Most importantly, there is no evidence before the court at this stage that M will, when making her application, fail to be full and frank with the Home Office and appraise them of all the relevant facts and circumstances. As is implicit from the undertaking she offers as set out above, she accepts that she will need to do so. Her proposed undertaking to provide her application to F and the court as soon as it is made gives sufficient protection at this juncture to address any concerns the court may have as to the proper administration of justice. The proposed way forward strikes, we respectfully suggest, a fair balance.
In conclusion Mr Tyzack and Ms Hampton submit the court should adjourn the applicant’s application and accept the respondent’s undertaking to file and serve any application she makes to the SSHD to permit the applicant to consider at that stage whether or not the respondent has made full and frank disclosure to the SSHD. The court was also updated that the respondent had in fact departed England and Wales on 2 December 2025. It was stated she planned to return to England on 11 December 2025. I am not clear whether she did.
In the light of the offer of an undertaking, I directed the applicant to briefly respond. Ms Barrons countered:
M’s resistance to disclosure takes the (incorrect) starting point that the full and frank disclosure is calculated to undermine her application, suggest to the Home Office that she has not been honest, or permit F to ‘frustrate’ it. It is not. To effect disclosure is no more than the Family Court applying the public policy considerations in Re C [1996] 2 FLR 725, noting that it holds information that is relevant to that assessment and considering it is in the interests of the administration of justice to ensure that the Home Office has all the information when making its decisions. It is for the Home Office to decide what is relevant and in what way, not for this court and not for M’s immigration team.
I have reached the clear conclusion that the respondent’s offer of an undertaking is the appropriate course. I shall therefore accept that undertaking and adjourn the application to the February 2026 hearing.
The respondent’s legal team are correct to directly address the concern I raised at the hearing that a judge of the family court should not “look the other way” when one thing was being said in evidence to the Family Court and another position may be advanced to the SSHD. There are strong public policy considerations in play in ensuring the confidentiality of the family courts do not undermine or impair the true functioning of the SSHD’s statutory immigration functions. My starting point would have been that the respondent should not have been able to advance a case to the SSHD, different to that which she had set out in her evidence to the Family Court, at least, not without a very good reason. It is also the case, obviously, that the family courts must police the truthfulness of what is said in evidence. The family courts require witnesses to be honest.
I am persuaded that should the respondent make an application for a visa, she should be permitted to make her application as she sees fit. It is arguably unfair to her, if the SSHD’s determination of her application were to be negatively affected by receipt of documents, by way of an order from this court. The SSHD may form the view this court was compelled to act because it was necessary to prevent discrepancies between what this court is told and what the respondent informs the SSHD. So, an order may be prejudicial to the respondent and possibly to S. Secondly, the applicant has no standing to interfere in the respondent’s own visa application, if one is made. It would be unfair to the respondent for him to exercise some form of filter on what information she seeks to be considered by the SSHD.
The court’s concern is that the information provided to the SSHD should be consistent with what this court has been told in the written evidence. The public policy considerations principally arise should an application be made. The adjourned application and the undertaking would permit this court to remedy any possible discrepancy. In my judgement that deals with the concerns in a proportionate manner having regard to the other Re C factors which emphasise the fact specific enquiry with a focus on the necessary confidentiality of the family courts. I have not considered S’s best interests in much detail in arriving at this decision, because I do not yet know where his best interests lie. I am concerned with Schedule 1, 1989 Act proceedings at an early stage. I am not concerned with wider welfare proceedings or child arrangements order applications. As is clear from this judgment, questions of forum and jurisdiction remain unsettled.
The relevance of the statements made in these proceedings to the SSHD principally arises if the respondent makes a further application. Given the evidence before me there is nothing to suggest a disclosure order is needed now given the respondent entered in July 2025. She entered via the “e” gates and the latest I am told is that she has departed the UK. Applying the re C criteria I cannot see a proper case for disclosure to correct any uncertainty about whether she was indirectly misleading when she entered via the “e” gates. The applicant has not even identified what form of “decision”, if any, the SSHD would take. The two page submissions filed on behalf of the applicant do not persuasively identify why disclosure to the SSHD is needed absent a further application. I do not understand the submission that fairness to the applicant dictates the court order disclosure to the SSHD now. As I have said the applicant has no standing or role in the historic or potential future immigration decision making vis-à-vis the respondent. It is not unfair to the applicant within the Schedule 1 proceedings and if it is necessary I will hear arguments on questions of forum in February 2026. Further, the applicant acknowledges the highest he can place the documents filed within these proceedings and their connection to the July “e” gate entry is that they are “potentially” a deception. I struggle to understand, if this is the applicant’s submission, how some form of investigation and prosecution of the respondent for the potential misleading use of the “e” gates in July 2025 is in S’s best interests. Nor do I consider disclosure of so much private and confidential material is proportionate or necessary, at this stage.
If I am informed the respondent has re-entered the UK after her departure on 2 December 2025, I shall consider that. The application brought by the applicant for disclosure is adjourned, not dismissed.
It has been suggested the applicant has already disclosed documents without the court’s permission. If that is correct, the respondent no doubt will make an application supported by evidence.
The parties are reminded to focus on S and his welfare and to avoid unnecessary satellite litigation and unhelpful manoeuvres.
I thank counsel for their assistance and ask them to draft an order giving effect to this decision.