SS v MCP

The background to this matter is set out in my judgment dated 6 November 2020 ([2020] EWHC 2971 (Fam)). I then had before me the father’s application dated 4 August 2020, which concerned the parties’ daughter, a British citizen, then aged 3 years and 4 months who had been living in India with her maternal grandmother since October 2018.

In Part 3 of his application the father sought the following orders:

Thus, the father not only sought a return order but also sought an order for contact.

In my judgment I held that the only possible ground of jurisdiction of this court over the child was Article 10 of the Brussels 2 bis Regulation.

I referred the following question to the Court of Justice of the European Union:

The Court of Justice dealt with my question under the urgent preliminary ruling procedure. On 4 February 2021 the Court held an oral hearing, conducted remotely. On 23 February 2021 Advocate General Rantos delivered his opinion (Footnote: ¹). He answered the question positively. On 24 March 2021 the Court gave its judgment in which it answered the question negatively, disagreeing with the Advocate General (Footnote: ²).

Specifically, the Court ruled, consistently with what I had provisionally decided in my judgment, that:

It is not necessary for the purposes of this judgment for me to analyse the reasoning of the Court of Justice. I cannot improve on the summary in [2021] Fam Law 771 by Rebecca Bailey-Harris:

There is no applicable bilateral treaty governing jurisdiction and recognition and enforcement of judgments in parental responsibility matters between United Kingdom and India. India is not a party to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children. Article 7 of that convention, which is the counterpart of article 10 of Brussels 2 bis, does not retain jurisdiction in England and Wales as it only applies where the wrongful removal is to another contracting state – see article 7(3). It is my opinion that the reasoning of the Court of Justice must apply equally to article 7 of the 1996 Hague Convention.

Therefore, the question whether England and Wales has jurisdiction is to be determined in accordance with article 14 of Brussels 2 bis. For the purposes of this case it provides merely that jurisdiction shall be determined in accordance with the laws of England and Wales.

In my previous judgment I explained how there was no jurisdiction in this case under article 8 or article 12 of Brussels 2 bis. My view was that there was no jurisdiction under article 10; and that has now been confirmed by the Court of Justice. I explained that sections 1 – 3 Family Law Act 1986 did not, on the facts of this case add any possible additional jurisdictional grounds. At [43] – [48] I held that there was no scope for jurisdiction to be established, and relief granted, pursuant to the court’s inherent powers in wardship. I had stayed all aspects of the proceedings pending the ruling from the Court of Justice; for that reason I did not then and there dismiss the wardship proceedings and de-ward the child.

The question having been answered, and I having previously decided there was no other basis for founding jurisdiction, the case was listed for the father to be given a final opportunity to show cause as to why his application dated 4 August 2020 (seeking that the child be made a ward of court and an order for her return be made) should not be dismissed. Regrettably, it has taken an unduly long period of time for that application to be listed and heard.

Ms Tayo for the father makes a strong and eloquent plea that I should exercise the parens patriae jurisdiction, which the High Court retains as one of its inherent powers, to require the mother and the grandmother to return the child to this country. She did not stop there but went on to submit that, on the return of the child, she should either live with the father or have substantial contact with him. In effect she is asking me to reconsider and to reverse my decision as to the inapplicability of the court’s inherent powers in this case.

In my judgment in GC v AS [2021] EWHC 14 (Fam) I sought to analyse this exceptional and anomalous residual jurisdiction at paras [56] –[74]. I will not repeat at any length what I said there particularly as the Court of Appeal in Re S (Children)(Inherent Jurisdiction: Setting Aside Return Order) [2021] EWCA Civ 1223 has considered that in some respects I fell into error.

In GC v AS I ventured the opinion that a certain amount of confusion had crept into the parens patriae jurisprudence in consequence of the obiter opinions of the Supreme Court justices in Re B (A child) [2016] UKSC 4, [2016] AC 606. Those opinions were obiter dicta because in that case the majority decision was that the English court had jurisdiction based on habitual residence. There were however subtle differences of emphasis between the justices’ opinions about the scope of the parens patriae jurisdiction.

However, I noted that the later decision of the Court of Appeal in of Re M (A Child) [2020] EWCA Civ 922, [2020] 3 WLR 1175 was directly on the point. In that case the British child had been taken to Algeria when she was only one year of age and had lived there continuously with her father and her father’s family for 12 years. The first instance Judge had exercised the parens patriae jurisdiction (there being no other ground of jurisdiction) and made a return order. The Court of Appeal set aside that order. At [140] Moylan LJ summarised his decision thus:

That decision fully bound me in GC v AS. I noted there at [65], and I restate here, the following clear and compelling principles enunciated in the judgment of Moylan LJ:

The use of the jurisdiction must be approached with great caution and circumspection (Re M at [104]).

There must be circumstances shown which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction [105]. This requirement constitutes a substantive threshold.

This substantive threshold is needed because a lower one based only on a welfare analysis of what is in the child’s best interests would conflict with principle that the use of the jurisdiction must be approached with great caution and circumspection [106].

The statutory limitations in sections 1(1)(d), 2(3) and 3(1) of the Family Law Act 1986 support the conclusion that the inherent jurisdiction, while not being wholly excluded, has been confined to a supporting, residual role [107].

The central ratio of Re M is that the jurisdiction can only be used very cautiously and circumspectly. Moylan LJ spells out with pitiless clarity that its purpose is not simply to promote what the English court thinks is in the child’s best interests; rather, there is an initial substantive threshold which must be surmounted. That threshold requires the applicant to prove the existence of sufficiently compelling circumstances to require or make it necessary for the court to exercise its protective jurisdiction. If, and only if, this threshold is surmounted can the court go on to consider broader questions of welfare.

Re S (Children)(Inherent Jurisdiction: Setting Aside Return Order) [2021] EWCA Civ 1223 is the decision on the appeal against my decision in GC v AS. Moylan LJ was a member of the Court but the only judgment was given by Baker LJ. That judgment stated at [47] that I had “failed to deal adequately with the mother's additional application, advanced independently of the set aside application, asking the court to exercise its parens patriae jurisdiction.” In developing that criticism Baker LJ makes a number of observations that taken alone might suggest that when dealing with such an application the court is “first and foremost” concerned with determining whether the exercise of the jurisdiction will promote the welfare of the children. See, for example [51], where Baker LJ refers to the court’s function when exercising this jurisdiction as being to:

Further, in this part of his judgment there is no reference to Moylan LJ’s substantive threshold which, as explained above, sets the bar much higher than a standard welfare enquiry.

I cannot believe that Baker LJ was intending to water down, let alone abandon, the crucial importance of this substantive threshold which is set appreciably higher than a standard welfare analysis. Indeed, in [54] Baker LJ implicitly acknowledges the threshold, saying:

As noted above, Lord Sumption described the jurisdiction as “exceptional and exorbitant.” At [51] Baker LJ disagreed with Lord Sumption’s use of language, saying:

I doubt that Lord Sumption was using the word in a pejorative sense but rather in its literal, etymological, sense as meaning ‘off-track’. On any view the jurisdiction is off-track. He was surely just emphasising its exceptionality. The various judicial descriptions of its exceptionality are, I suggest, no more than semantics. Lord Sumption describes the jurisdiction as “exceptional and exorbitant”; Moylan LJ speaks of the jurisdiction being exercisable only where circumstances are “sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction”; Baker LJ says “the jurisdiction must be limited to compelling circumstances.” It all comes to the same thing.

In my judgment I am duty-bound to apply Moylan LJ’s principles. It would be a major error for me to read Baker LJ’s judgment as directing a trial judge straight to a lower welfare analysis which may have the consequence of reducing to insignificance the exceptionality of the jurisdiction and the significance of the statutory prohibitions.

I put it to Ms Tayo that the cases only reveal the exercise of this exceptional jurisdiction in a crisis where a child is at risk of harm of the type that would engage articles 2 or 3 of the European Convention on Human Rights. Thus, in Re M (Wardship: Jurisdiction and Powers) at [32] Sir James Munby P stated:

It is noteworthy that in that case such caution was being exercised in respect of children over whom the court had primary jurisdiction based on habitual residence. Be that as it may, is clear that the President had in mind that a crisis must be underway before the jurisdiction should be exercised.

To exercise the jurisdiction routinely, applying a simple welfare test, would be patronising and disrespectful of the court which has primary jurisdiction based on habitual residence. Such an approach assumes that the other place does not have a good enough legal system to protect and promote the welfare of children under its wing. It assumes that this country’s system is superior and that the welfare of children can only be truly promoted if this country’s laws and procedures are applied to them. It is a fundamentally chauvinistic approach. It is for this reason that I adhere to the concept of a substantive threshold, and I cannot accept that Re S says otherwise, whatever Baker LJ’s comments might suggest.

In this case there is little evidence about the child’s circumstances, but none to suggest that she is in any way in such peril that one could say that the substantive threshold is surmounted. On the contrary there is no evidence by or on behalf of the father that there are circumstances here which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction. The mother has stated that she speaks to the child daily on WhatsApp and that she is thriving.

Ms Tayo has painted a picture of India ravaged by Covid-19, which she likens to a war zone. She points to the fact that the grandmother is in her 70s and that her life may well yet be claimed by the pandemic, leaving the child effectively orphaned. There is no evidence of any of this. On the contrary the evidence, such as it is, suggests that the child has been brought up in entirely unremarkable circumstances. If the father wishes to make any application in relation to the child either for custody, or access, or that the child should be relocated to England, then he should litigate in the court of primary jurisdiction. I can take judicial notice, supported by the illuminating description of the Indian legal system by Mr Justice Cobb in J v J (Return to Non-Hague Convention Country) [2021] EWHC 2412 (Fam), that India has a fully functioning family justice system which is accessible by the father to make such applications concerning the welfare of the child as he considers appropriate.

I agree with the submissions of Mr Metzer QC and Dr Proudman that this is an unremarkable domestic case which does not come near to surmounting the threshold.

As I have explained above, Ms Tayo made it clear that her client’s objective in seeking to invoke the parens patriae jurisdiction was not merely to have the child relocated back to England but also to seek orders providing for the child to live with him or otherwise to spend appreciable periods with him. I therefore put it to Ms Tayo that the father was invoking the parens patriae jurisdiction as a preparatory step to obtain orders which are explicitly prohibited by the Family Law Act 1986. This was exactly the situation described by Lord Sumption in his judgment at [85] where he said:

The statutory limitations are, needless to say, of the greatest importance. In Re B the Court of Appeal pointed out that the parens patriae jurisdiction cannot be exercised where the claim is for “care of… or… contact with” the child within the meaning of sections 1(1)(d)(i), and 2(3), that is to say a child who is neither under the jurisdiction of the courts of England and Wales pursuant to the 1996 Convention, nor habitually resident in England and Wales, nor present here. (Footnote: ³) It approved the decision of Ward J, as he then was, in F v S (Wardship: Jurisdiction) [1991] 2 FLR 349, where he considered whether it was nonetheless open to him to make a return order in respect of such a child. He held at 356:

It is clear from the judgment of Moylan LJ in Re M that the burden of surmounting the substantive threshold falls on the applicant. He has to show that there are circumstances here which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction. The burden is to demonstrate that a crisis has erupted and that in consequence the child has suffered, or is at risk of suffering, serious harm, of the type, as Sir James Munby P suggested, that would engage articles 2 or 3 (i.e. a threat to life or of inhuman or degrading treatment). In Re M (Wardship: Jurisdiction and Powers) the President stated that he did not need to consider whether the jurisdiction would be exercisable where the risk to the child is of harm falling short of harm of the type that would engage Articles 2 or 3 of the Convention. In my judgment, if Moylan LJ’s substantive threshold is not to be robbed of meaningful content, the bar must be set at that level of harm. That level is not positioned at the “very extreme end of the spectrum” (see Re M at [105]) but rather at a point which rightly reflects the criteria of caution, circumspection and necessity. It also gives effect to the key underlying principle that the jurisdiction is protective in nature to be exercised in a supporting, residual role (ibid at [107]). I entirely agree with Baker LJ’s comment in Re S at [52] that these observations by Moylan LJ are a general reflection on the (extremely limited) scope of the jurisdiction rather than a technical point about the need for some kind of alternative cause of action. I also agree with Baker LJ’s observation, also at [52], that the function of the court is to make:

The applicant has failed to discharge that burden. There is no evidence that a crisis has erupted and that the child is in such peril. In the absence of such evidence a return order would plainly amount to what Ward J described as a devious entry to the court by the back door where Parliament has firmly shut the front door, and to what Lord Sumption described as an improper exercise of the court’s discretion. Indeed, inasmuch as the father seeks an order for contact in para 2 of his application he is not seeking a devious entry to the court via the back door. Rather, he is seeking to break down a very firmly locked front door.

Even were I to apply a routine, and much lower, welfare test I cannot say that it has been shown that the interests of the child require her to be uprooted from her home where she has lived for the last three years. She is now aged four years and four months and so has spent virtually her entire sentient life living in her grandmother’s home in India. The mother has advanced some strong allegations of domestic violence at the hands of the father which would need to be investigated very carefully before a return order based on welfare grounds could even be contemplated.

If a return order were to be made, the risk of a later inconsistent judgment from an Indian court becomes very real. This is a vice which almost at all costs should be avoided.

For all these reasons the father’s application dated 4 August 2020 is dismissed and the child shall cease to be a ward of court. The mother is granted permission to withdraw her application dated 26 June 2019, which I found to be completely misconceived in my previous judgment at para 32.

That is my judgment.