D (Wardship: Jurisdiction: Cutting Across Statutory Schemes), Re

This is an application on behalf of the mother, or “M”, to set aside orders made by this court on 27 September 2019, 5 November 2019, 21 November 2019, 30 June 2020, 6 August 2020, 24 November 2020, 9 December 2020, 9 February 2021 and 18 March 2021. The orders all relate to proceedings brought under the inherent jurisdiction of the High Court in relation to the child, D. The basis of M’s application is that she says they were made without jurisdiction. The child’s father is F. F supports M’s application. The local authority and the Guardian appointed for D in the public law proceedings oppose the application.

The child at the heart of this case is D.

D is the father's third child and the mother’s first child. Mr Justice Moor found at the conclusion of a fact-finding hearing in 2014, that the father had injured his first child, S, on a number of occasions; the last resulting in her death. The mother of S was found to have failed to protect her. Their second child was removed from their care and made subject to care and placement orders.

D is the child of the father’s subsequent relationship with her mother, the applicant. D’s parents were married in an Islamic ceremony in the summer of 2016. Their relationship appears to have endured.

As a direct result of the findings Mr Justice Moor made against the father, the local authority undertook pre-birth assessments in relation to D and instigated all proper avenues of child protection discussion and enquiries. In the latter stages of that process, the mother had the benefit of a solicitor experienced in child protection. The judgments of Mr Justice Moor were shared with the family to ensure a proper factual basis for future working. At the end of the process of assessment, the conclusion within the local authority was that the mother was vulnerable by reasons of her own background and was unlikely to be a protective factor as she and the maternal family believed the findings of Mr Justice Moor were wrong and that the father was innocent as he claimed. The local authority therefore proposed a safety plan. A child protection case conference was to be held to see if the mother could parent the baby-to-be D away from the father. If that could be achieved then the risk assessment would focus on the father and what, if any role, he should play in the baby’s life. That plan was communicated to the mother.

Against that background, in early September 2019 the mother, heavily pregnant, was driven to the airport by the father and boarded a plane. She left the UK and travelled to Iraq where she was met by the paternal family. The mother told the midwife she intended to return to the UK on 19 September 2019 and told her own solicitor she would return on 18 September 2019.

D was born in late September 2019 in Iraq. D is now 4 years old. She has remained in Iraq to date.

Initially, the mother remained in email communication with her solicitor and by that means she communicated that she and D would return to this jurisdiction once she had recovered from giving birth and another medical procedure that she had recently undergone. However, as time passed the communication stopped and D and her mother failed to return to this jurisdiction.

Consequently, on 27 September 2019 the local authority applied for permission to invoke the inherent jurisdiction in relation to D and to make her a ward of court to “secure her return to the UK and to protect [her] from the harm that she is likely to suffer in the care of either parent”. The local authority relied on the risk assessment they attached to the application.

The application made by the local authority came before Mr Justice Francis on 27 September 2019. It appears he dealt with the application on the papers. The recitals state:

On 27 September 2019, Mr Justice Francis made D a ward of court. He directed that the mother should return the child forthwith to the jurisdiction of England and Wales. He directed that every person within the jurisdiction who was in a position to do so should co-operate in assisting and securing the immediate return of the child to the jurisdiction. In addition, he made a number of ancillary orders including listing a return date for 9 October 2019.

The order of 27 September 2019 was personally served on the father the next day, but he did not attend the return hearing set for 9 October 2019. The mother did not return D to the jurisdiction. Mr Justice Francis thus made a number of case management directions and directed the father to answer 10 questions to help locate D. That order was hand delivered to the father on 14 October 2019. Mr Justice Francis had made orders for the mother’s, the father’s and the child’s passport and travel documents to be seized by the Tipstaff. On 18 October 2019, the court was informed that the order had been executed against the father and his passport and travel documents had been seized. The Tipstaff also managed to obtain the first real information about the child. Her name was confirmed and she was with her mother and paternal aunt in Northern Iraq.

A further hearing took place before Mr Justice Francis on 5 November 2019. The father attended this hearing and had the benefit of an interpreter. The father gave evidence before Mr Justice Francis in which he denied that the trip to Iraq was anything to do with him and claimed to only have communication with the mother via her solicitors.

On 5 November 2019, Mr Justice Francis heard evidence from the father and gave a short ex tempore judgment. The learned judge said he was “gravely concerned about the welfare of D” and that he was not inclined to believe anything the father had told him. The following recitals were made on the face of the order: -

The next hearing before Mr Justice Francis was on 21 November 2019. The mother was not present, but all other parties were present and represented, I have a transcript of that hearing. It includes the following:

On 21 November 2019, Mr Justice Francis proceeded to make a final declaration that this court had jurisdiction in relation to D on the basis of nationality. He noted again the child had not been returned and the mother was not co-operating. Port alerts and passport orders were extended to the conclusion of the proceedings. He made case management directions and listed the matter for a fact-finding hearing.

That fact finding hearing came before HHJ Lloyd sitting as a s.9 Judge on 3 March 2020. The learned judge heard evidence from social workers and the father. She considered the papers that had been placed before her. She found that the father has “a fixed agenda, and has shown considerable skill in avoiding answering the simplest of questions”. The learned judge was satisfied that the father had not come to the court “with an intention of assisting me in locating his daughter”.

HHJ Lloyd made directions allowing the father to put his case before the court on all the issues to which by then he objected, including the continuation of the wardship orders and the retention of his documents by the Tipstaff. Future hearing dates were scheduled to enable a full hearing. That hearing was scheduled to take place in June 2020 but had to be re-timetabled to August 2020 because of technical difficulties.

On 6 August 2020 after hearing two days of evidence from social workers, the Guardian and the father, HHJ Lloyd continued the wardship order and stated the following:

The recital to her order then includes the following matters:

The case was next listed before Mr Justice Francis on 9 December 2020. From the papers before me, it appears that this was a brief hearing. The father had failed to comply with the previous court order to provide specified evidence. Mr Justice Francis granted the father further time to comply but warned that if he did not comply, he would face contempt proceedings. From the transcript of that hearing and for the purposes of this judgment, I take the following:

The father did not comply with the further order Mr Justice Francis had made for the father to provide specific evidence. The local authority therefore issued proceedings for contempt which came before me sitting as a Deputy High Court Judge on 22 December 2020. I found the father to be in contempt of court and listed the matter for sentence on a date in the New Year. In the meantime, I required the father to file in full his reasons for objecting to the wardship order; his position on the provision of a restricted travel document for his daughter; his reasons for requiring release of his own travel documents and any objection he may have for the release of his asylum application which the Home Office was at that time considering in relation to him. The hope and expectation was that the father would cooperate with the court’s process.

The sentencing hearing was initially listed before me on 9 February 2021 but that hearing had to be adjourned because there was no court interpreter. Thus, the sentencing hearing came before me in March 2021. By that time, the father had complied with the order at the heart of the contempt proceedings; namely he had provided the required evidence. Therefore, I decided on 18 March 2021 that no separate penalty was required. However, in relation to costs, I ordered him to pay £1000 towards the costs of the local authority. I did so because the evidence he produced could have been produced much earlier, in line with the orders of HHJ Lloyd and Mr Justice Francis. Had it been so produced, two further hearings would not have been necessary.

In relation to the wardship, having heard his oral evidence on 17 March 2021, I found that “[D’s] safety demands that they [the orders previously made including the wardship orders] remain in place, I find that the findings of Mr Justice Francis as made on 9 December 2020 [...] are as valid now as they were when he made them”. In the circumstances, I ordered that D should remain a ward throughout her majority or until further court order, whichever is the soonest. Any application to set aside or challenge that wardship was to be made on 48 hours’ notice to all parties and was to be heard by myself or Mr Justice Francis. I repeated the salient orders made by Mr Justice Francis on 9 December 2020.

Despite provision for set aside in the order of 18 March 2021, no application to set aside or vary that order was received at the time. Instead, on 6 April 2023, the mother lodged an application for permission to appeal out of time all the orders she now seeks to set aside. Lord Justice Moylan refused permission to appeal on 27 October 2023. Permission to appeal was refused almost entirely on the basis that “none of the matters raised in the grounds have yet been considered by the High Court because no application has been made to the High Court to vary or set aside the orders made”. In the circumstances, it was considered “premature to seek permission to appeal to the court of appeal”. The mother should, if she has grounds for doing so, “make an application to the High Court to vary or set aside its orders”. Thus, the mother applied on 15 December 2023 to this court to set aside the orders.

That application came before Mr Justice Francis in February 2024, and he gave case management directions. Those directions included setting the matter down for a hearing before me.

I begin this section of the judgment by setting out the Family Law Act 1986 in so far as is relevant to the issue I must determine. It states as follows: -

If the order in question is a Part 1 order then ss. 2-3 provides relevantly as follows: -

The net effect of the above is that it restricts the making of orders giving care of or contact with a child to any person to those cases where the court has jurisdiction under Council Regulation 2201/2003 or the Hague Convention 1996 or if not, where the child is:

I note from the above that the relevant sections do not mention public law orders in relation to England and Wales. That contrasts with the provisions relevant to Scotland.

In so far as s.8 of the Children Act 1989 is concerned:

As the application in this case is made by a local authority, s.100 of the Children Act 1989 is relevant. It states as follows:

The above provides the parameters for the exercise of the inherent jurisdiction by a local authority. The High Court cannot exercise its inherent jurisdiction to place a child in the care or under the supervision of a local authority or so as to require a child to be accommodated by a local authority. No applications can be made by a local authority for the court to exercise its inherent jurisdiction with respect to a child unless that local authority has obtained the leave of the court. Such leave may only be granted if there is “reasonable cause to believe” that if the court’s inherent jurisdiction was not exercised, the child was “likely to suffer significant harm” and the order could not be made otherwise than in the exercise of the court’s jurisdiction.

I am grateful for the bundle of authorities with which I have been provided.

I begin my consideration of the authorities with the first report in that bundle - A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60 - wherein the Supreme Court considered whether the High Court had the jurisdiction to order the return to this country of a small child who has never lived nor been here, on the basis that he (in that case) is either habitually resident in this jurisdiction or that he has British Nationality. In answering that question, the Supreme Court decided that presence was a necessary precursor for habitual residence, with Baroness Hale stating the following at paragraph 55:

Within the judgment, Baroness Hale addressed the linked question - “Is there another basis for jurisdiction?” - at paragraph 59 and following in her judgment. Therein, she stated the following at paragraphs 60-63:

Baroness Hale then proceeded to address the question of whether or not it was appropriate to exercise the parens patriae jurisdiction, stating at paragraphs 64-65 the following

The next authority in the series of cases to which I have been taken is Re F (A child) [2014] EWCA Civ 789. It is authority for the propositions that (i) jurisdiction is determined at the time the court is seized and (ii) that Re E (Brussells II Revised: Vienna Convention: Reporting Restrictions) 2014 EWHC 6 (Fam) applies in principle to all care cases with a foreign dimension. Within his judgment, Sir James Munby P (as he then was) spelt out the consequence of that decision in paragraphs 11 and 12 of his judgment as follows:

The next relevant authority is Re B (A Child: Fair Hearing) [2016] UKSC 16. The central issue therein was the relevant date for determining a child’s habitual residence but in dicta, the Supreme Court considered the issue of jurisdiction based on nationality. Baroness Hale and Lord Toulson gave a joint judgment in which they stated at paragraphs 58-61 that:

Although Lord Wilson gave the lead judgment on habitual residence in Re B (above), he agreed with Baroness Hale and Lord Toulson, stating at paragraph 53: “I do, however, agree with Baroness Hale of Richmond DPSC and Lord Toulson JSC 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 courts usual inhibition about exercising it”.

In Re B (above), Lord Sumption and Lord Clarke gave dissenting judgments. In relation to jurisdiction based on nationality and the exercise of the inherent jurisdiction Lord Sumption stated at paragraphs 81-87 that:

Lord Clarke agreed with Lord Sumption that the appeal from the decision on the exercise of the inherent jurisdiction should be dismissed. He also agreed with Baroness Hale and Lord Toulson’s comments about the need for great caution and circumspection for the reasons they give, but added that he agreed with Lord Sumption that on the facts of the case they were considering, the court should not use the inherent jurisdiction to order a child to be returned to the jurisdiction in order to enable a court to exercise its statutory jurisdiction in circumstances in which it would not otherwise have that jurisdiction.

In Re M (A Child) [2020] EWCA Civ 922, Lord Justice Moylan analysed in depth the previous case law, including the judgments of both the Court of Appeal and the Supreme Court in Re B (above). Lord Justice Moylan started his consideration of the law at paragraph 43:

Within paragraphs 54-61 of his judgment, Lord Justice Moylan analysed the Supreme Court’s consideration in A v A (above) of whether the order in that case which made the children wards fell afoul of s.1(1)(a) or (d) of the FLA 1986. Baroness Hale in her judgment made a distinction between orders made when a court exercises its powers under the inherent jurisdiction and those made under the Children Act 1989. In that context, at paragraph 61, Lord Justice Moylan stated as follows:

Lord Justice Moylan then turned to deal with the court’s inherent jurisdiction in relation to children who are British nationals and when that jurisdiction should be exercised. He began by considering Baroness Hale’s judgment in relation to that issue in A v A (above) before turning to Lady Justice Black’s in the Court of Appeal in Re B (above) before turning to the judgments given in the Supreme Court in that case. Thereafter, he considered a number of first instance decisions which postdated Re B before turning to his conclusions at paragraph 87.

He began by stating that it is clear that apart from the very significant limitations prescribed by the FLA 1986, the court has jurisdiction based on nationality even though the child concerned is neither habitually resident nor present in England (see paragraph 88), before proceeding to the “important question” of what test or guide the courts should use when deciding whether it is appropriate to exercise that jurisdiction. Ultimately, that will depend on the circumstances of the case and on the nature of the order sought. As to the broader issue of what is the legal position in the light of Re B (above), he sets out his conclusions on that issue in the paragraphs 104-108 as follows:

In addition, I have been taken to UD V XB [2019] 1 FLR 289 in which the Court of Justice of the European Union held that habitual residence could not be established in a Member State that the child had never been to. Physical presence in a Member State was vital and such presence could not be temporary or intermittent. The recognition of a child’s habitual residence in a Member State required at least that the child had been physically present in that Member State and that condition was satisfied before the stability of that presence could be assessed. However, I note paragraphs 66 and 67 of the judgment accepts that Member states may, on a residual basis, confer jurisdiction on their courts under their national laws. Such a residual jurisdiction exists in this court in the form of parens patriae jurisdiction which applies to British citizens at the discretion of the national court.

The most recent authority placed before me is that of London Borough of Hackney v P [2023] EWCA Civ 1213. The principal issue raised on appeal is the date upon which the court should consider jurisdiction based on habitual residence in relation to the 1996 Hague Convention. Lord Justice Moylan decided that the issue of habitual residence should be considered at the commencement of public law proceedings (see paragraph 113). From that, I note that at paragraph 63 Lord Justice Moylan stated the following in relation to the FLA 1986:

Later in his judgment, in the context of considering when the issue of jurisdiction should be determined, Lord Justice Moylan stated at paragraphs 87-88 that:

I have been taken to Re B (A child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, wherein the Court of Appeal held that it was not a permissible exercise of the courts power to require a non-party, whether an adult or a child, who had no parental responsibility or any other form of power or control over an abducted child to lodge his or her passport with the court in order to coerce him or her to put pressure on the abductor to return the child to the jurisdiction; and that, accordingly, the judge had been wrong to order the half-brother and the grandparents in that case to lodge their passports with the court.

Re L (A Child) [2017] 1 FLR has also been placed before me. That case deals primarily with breaches of procedure which were fatal defects in an application for committal. Its import in the proceedings before me in relation to the factors in that case which justified the discharge of the collection orders. They were:

Lastly and by no means least, I have been taken to Mr Justice Cobb’s decision in Re P (Discharge of Passport Order) [2020] EWHC 3009 (Fam) wherein he stated the following at paragraphs 31-32:

The applicant mother was represented before me by Michael Gration KC and Mani Basi, the respondent local authority by Dominic Boothroyd, and the child through her Guardian by Rebecca Foulkes. I am grateful to each for their eloquent and focused submissions.

The respondent father chose to represent himself. He had the benefit of an interpreter when making his submissions to me, but often chose to interact with me directly in English.

In the hearing, I was referred to five bundles in total: a main bundle of 181 pages; a supplemental bundle of 77 pages; a further supplemental bundle of 113 pages which had been prepared for the application for permission to appeal; a bundle of authorities of 411 pages; and a bundle prepared for the hearing on 17-18 March 2021 of 1441 pages.

The hearing before me was listed over three days beginning on 5 March 2024. The time estimate had been given to accommodate judgment writing. However, on the first day the father appeared remotely. His connection was poor, and he did not have an interpreter. He was able to understand what was being said, but not able to communicate with the court effectively. With his consent, I was able to proceed to hear the submissions on behalf of the mother on the first day. However, such was the poor connection and the father’s inability to communicate, I adjourned his submissions for his attendance in person the next day. These submissions were followed by those on behalf of the local authority and those on behalf of the Guardian with the applicant taking the opportunity to reply on the third day. Thus, I reserved this judgment which has been handed down at the first realistic opportunity.

The mother seeks to set aside the orders which, she asserts, the courts of England and Wales do not (and never had) jurisdiction to make in relation to D. It is said that the court has not previously addressed in any real substance (or at all) the jurisdictional issues in this case. In particular, the following submissions are made:

In addition to the return order, the court has made orders in relation to the passports held by the mother, the child, and the maternal grandmother; the effects of which have been to prevent them obtaining passports and to prevent their travel to any other country but this country. It is asserted that it is likely that those orders were made to force the mother into returning D to the jurisdiction. If that was the purpose, it is said it is an incorrect purpose. They were made to coerce and pressurise the mother to return with the child to this jurisdiction. The maternal grandmother, who is not a party to this case, has had her freedom of movement greatly limited.

If the mother’s primary argument succeeds, then it is said the passport orders should be dismissed for want of jurisdiction. If it does not, then it is argued that the court below was wrong to make and to continue the passport orders in the way it did, and that they should be discharged.

If, contrary to the mother’s primary case, I find that this court has jurisdiction then I am asked to list the application for consideration of whether it remains appropriate for this court to exercise that jurisdiction and if it is, the manner in which it should be exercised.

The father supported the mother’s case but sought to go further. He continued to assert that he was not a risk to D or anyone else. He does not agree with the findings of Mr Justice Moor. He would like his travel documents back.

On behalf of the local authority, it is accepted that this court has no jurisdiction to make public law orders in relation to an unborn child - Re F (In Utero) [1988] Fam 122. Equally, it is accepted that public law orders could not be made in relation to D after her birth as she had never been present in the jurisdiction - UD v XB (above). The only basis upon which the court could have jurisdiction was based on her nationality. By reason of section 2 of the British Nationality Act 1981, D is a British citizen.

It is argued that jurisdiction in this case has been properly exercised on the basis that D is a British citizen since the hearing before Mr Justice Francis on 21 November 2019.

The court had the power to make the orders. The issue is whether the reasons for making the orders were sufficiently compelling. In relation to that, the local authority asserts that the unchallenged factual basis in this case shows that it was.

It is said that the issue of jurisdiction was properly grappled with. The transcript for that hearing demonstrates that Mr Justice Francis’s interaction with counsel in November 2019 shows that it was. He did have the judgments in A v A (above) and Re B (above) at the forefront of his mind. The issue of jurisdiction was again considered by HHJ Lloyd in her judgment in August 2020. The issue was again re-visited by me, sitting as a Deputy High Court Judge in 2021. It is said that the unchallenged factual findings that I made, and which restated those of earlier judge’s, remained:

On behalf of the Guardian, it is argued that at the time that the court was first seized of the application, namely on 27 September 2019, Brussels IIa regulation still applied. The decision in UD V XB (Case C-393/18 PPU) determined that Article 8(1) of the regulation must be interpreted to the effect that a child must have been physically present in a member State in order to be regarded as habitually resident there. D has never been physically present in England and Wales and thus she cannot be said to have been habitually resident here for the purposes of the regulation. However, I am specifically taken to paragraph 67 of the judgment in UD V XB (above) which specifically makes reference to the residual jurisdiction available to the courts of England and Wales under the parens patriae which applies to British nationals at the discretion of the national courts and which permits the courts of England and Wales to protect the interests of a child even in the case of disputes outwith Article 8(1).

It is argued that the parens patriae applies in relation to D and should be exercised in this case. The restrictions on the use of parens patriae in the 1986 Act do not exclude its use so as to order the return of a child to this jurisdiction. Whilst endorsing the warning given by Thorpe LJ in Al Habtoor v Fotheringham [2001] 1 FLR that there were reasons for “extreme circumspection” in exercising the jurisdiction, the Supreme Court observed at paragraph 65 of A v A (below) that “all must depend on the particular circumstances of the case”. Accordingly, it is argued that the court has the power under the parens patriae to order D’s return to this jurisdiction. The issue is said to be whether the court should have exercised its jurisdiction to do so. In Re M (A Child) [2020] EWCA Civ 922, the court considered the exercise of the inherent jurisdiction to order the return of a British child. It was in that context that Moylan LJ carried out his extensive review of the authorities. I am specifically taken to paragraphs 104-108 of his judgment. Paragraph 108 begins as follows:

It is said on behalf of the Guardian that it “is hard to imagine circumstances more compelling than those that exist for [D]” because:

In response to the mother’s argument that the orders made cut across the statutory scheme in FLA 1986, it is argued on behalf of the Guardian that it is “almost inevitable if the circumstances are sufficiently compelling so as to justify the use of the parens patriae jurisdiction to make protective orders for a child, there is a possibility if not a likelihood that, upon the child’s return to this jurisdiction, the court may be asked to undertake a welfare enquiry”. The FLA 1986 prohibits the court from making an order under the inherent jurisdiction giving care of D to any person or from providing contact to her - “The orders made in respect of D self-evidently did not offend this restriction”. Re M (above) was a decision in a private law case. Whilst there was local authority involvement in that case, it was in the background. The wording of the prohibition in FLA 1986 and the reference to “any person” does not fit easily with the envisaged public law proceedings in this case. The extent to which a local authority can exercise the inherent jurisdiction is limited by s.100(2) of the Children Act 1989 and thus, on behalf of the Guardian, it is hard to see how any order made on an application by a local authority under the inherent jurisdiction could ever offend the FLA 1986. The purpose of the orders in this case were protective for reasons which were more than “sufficiently compelling”.

As to the passport orders, their purpose was to avoid the risk of the mother circumventing the return order by undertaking further international travel. It was not to punish or coerce. On the facts of this case, they cannot be said to be disproportionate.

The application on behalf of the mother to set aside the various orders (set out above) was lodged with the court on 15 December 2023. I have reminded myself that I am not revisiting those orders as an appellate court. The application before me is an application to set aside. PD12D paragraph 8 applies to applications to set aside inherent jurisdiction orders. Such applications must be made promptly when the party becomes aware of new information or of the circumstances which give rise to the application - paragraph 8.3. An application to set aside an inherent jurisdiction order can only be made in the circumstances set out in paragraph 8.4 unless the circumstances in FPR r.18.11 apply. FPR 2010 r.18.11 applies if the applicant had no notice of the original application. Whilst the applicant had instructed solicitors who appear to have maintained contact with her after the application was issued, there is no evidence before me that she was actually served with the original application and no application for substituted service appears to have been made. Thus, rule 18.11 appears to apply although the application cannot be said to have been made promptly. Whilst no formal application has been made to apply out of time, I have decided to extend the time for application for three reasons: (i) it was the refusal of permission to appeal by Lord Justice Moylan and his reasons for refusal that prompted the application; (ii) all parties have been able to argue their case despite the efflux of time; and (iii) it is in D’s welfare interests that the issues central to this case are decided.

I start at the beginning of this case with the initial application made by the local authority on 27 September 2019. At the time the application was made, D was 5 days old. The short description of relevant information provided supplementing the application in the C1A is that the father had caused multiple injuries and death to his first child and that the mother is unable to accept the risks the father poses to D and thus is unable to protect her. It was said the mother had fled the country to avoid local authority intervention and care proceedings. Consequently, the local authority sought permission to invoke the inherent jurisdiction and an order to protect “the safety and wellbeing” of D. On the face of the C66 itself at paragraph 3, it was stated that the local authority wanted the court to invoke the inherent jurisdiction to make orders to secure D’s return to the UK and to protect her from the harm she is likely to suffer in the care of either parent. The local authority relied upon a risk assessment which had been undertaken pre-birth dated 25 September 2019. I have re-read that assessment (found in the bundle for the hearings in March 2021 at D1/1 and following). It is comprehensive. It includes details which indicate that from the local authority’s perspective, the mother and the maternal grandmother had a history of being vulnerable to exploitative relationships (see D1/16-23). The assessor concluded that the father continues to pose a high risk to children. He has shown no insight and continued to deny the findings of Mr Justice Moor. D’s mother and maternal grandmother did not accept that the father poses a risk to D. D was thus said to be at high risk of suffering significant harm following birth. At the time the assessment concluded the mother had left the country and disengaged with the assessment. The assessor recommendations included the following:

The assessment provides the context to the order made by Mr Justice Francis on the papers on 27 September 2019. On that occasion, the court was satisfied and declared on a provisional basis of the evidence filed that (a) the courts of England and Wales have primary jurisdiction in matters of parental responsibility over the child pursuant to Articles 8, 10 of B11R. He made D a ward of court during her minority or until further order and made an order for her return to the jurisdiction forthwith.

The provisional declaration made by Mr Justice Francis on 27 September 2019 are heavily criticised before me on behalf of the mother. It is criticised on the basis that: -

In terms of the form of the order made, I have reminded myself of the full passage at paragraph 12(i) in Re F above which includes:

The better and unanswerable criticism is that jurisdiction under Article 8(1) depended on where the child was habitually resident at the time the court was seized - Re F (above), paragraph 12(iii). In this case, at the time the court was seized of the application, BIIa still applied. At that time, D was not habitually resident within this jurisdiction. It is properly accepted by all parties before me that at the time the court was seized D could not have been habitually resident in this jurisdiction because she had never been physically present here - UD v XB (above) and A v A (above) at paragraph 55. Since then, Brexit has been implemented and BIIa no longer applied. Nevertheless, it remains the position that as at the date this court was seized, and now, as a matter of fact, D is and was neither present in the jurisdiction nor habitually resident here. Hence, jurisdiction could not at the time, nor could it now, be based on habitual residence or presence.

I return to the chronology of the case. Despite service of the order of 27 September 2019 upon him, the father failed to attend the return date on 9 October 2019. Given the factual context of the case, the focus of the hearing was the provision of information by the father to enable D to be located. As set out in the chronology at the beginning of this judgment, passport orders were made at the next hearing on 14 October 2019. The next hearing was on 5 November 2019. I have before me an agreed note of that hearing. The note captures that the court was “gravely concerned about the welfare for D. She is said to be in the Kurdistani part of Iraq with her mother. Although her mother does not speak Kurdish”. The issue of jurisdiction does not appear to have been revisited but wardship orders were continued.

However, the court did return to the basis upon which the court was exercising its jurisdiction in relation to D on 21 November 2019. The transcript for that hearing captures the learned judge’s exchange with the parties’ legal representatives. That exchange demonstrates Mr Justice Francis engaging with them on the issue of jurisdiction. Jurisdiction was agreed by all parties then before the court to be based on nationality. Mr Justice Francis agreed. In agreeing, it is clear that he had considered the relevant authorities, referring to having to decide in another case between Baroness Hale on the one hand and Lord Sumption on the other which appears to me to be a reference to A v A and Re B. Later in the transcript, he poses the question – “On what basis are the local authority asserting that the child is in danger?”. The reply on behalf of the local authority was that “it is an attempt to effectively keep the child away from professionals in this country and allow father to have unfettered access either in that country or in a third country or indeed in some other way returning her to this country when the eyes of the court are off the situation”, to which the judge responded “if we do nothing, you say the child and the father will be back together and then the child is at risk because the father was obviously found to be responsible for the death of the child”. Later in the hearing, the learned judge returns to the issue of jurisdiction in an exchange with the father’s representative which concludes as follows:

Mr Justice Francis is criticised on behalf of the mother for “not addressing in any real substance (or perhaps at all) in relation to the jurisdictional issues”. However, the transcript of the 21 November 2019 demonstrates that he did engage with the issue of jurisdiction and did so with the relevant authorities in mind as the passages to which I have just referred show.

I agree with Mr Gration KC that the learned judge did not timetable further evidence on the issue of jurisdiction or direct skeleton arguments upon it. He did not do so because he did not need to; the parties agreed there was jurisdiction on the basis of nationality. It is therefore not surprising that, in accordance with the overriding objective, he did not direct evidence or arguments in relation to an agreed issue. In the presence of agreement, a recording in the recital of his order that the court had jurisdiction based on nationality was sufficient. Whilst a short judgment would be preferable, given the exigencies of a busy court list, it is perhaps not surprising that one was not given.

The fact-finding hearing that Mr Justice Francis directed was heard by HHJ Lloyd sitting as a s.9 judge. The local authority and the Guardian were represented. The father self-represented and the mother did not attend. For the purpose of this judgment, I have re-read his statement to that court dated 23 July 2020. It is clear from that statement that the father challenged jurisdiction on the basis that D was an Iraqi not a British national and on the basis that she had never been habitually resident in this jurisdiction. At paragraphs 3 -5 of her judgment, HHJ Lloyd engaged with the issue of jurisdiction:

HHJ Lloyd next heard the case on 24 November 2020. Her order demonstrates at recital 5 that she again considered the issue of jurisdiction and set the case down for a final contested hearing to determine whether the wardship should continue, whether a limited passport for D should be issued and continued retention of the father’s travel documents. Those issues came before Mr Justice Francis on 9 December 2020. I have the transcript of those proceedings. At that hearing, the learned judge queried what was going to be contested if D did not return to the jurisdiction. Later in the transcript, he points out that the father had not filed any evidence identifying the basis for his objection to the continuation of the wardship orders and his position on D’s travel documents or any evidence about his communication with the mother.

The order made by Mr Justice Francis made on 9 December 2020 contained the following:

It was in the above context that the case was referred to me sitting as a Deputy High Court Judge for committal of the father who had failed to supply the necessary evidence and for final wardship orders. I made final wardship orders on 18 March 2021. I have a transcript of the judgment I gave on that occasion. Paragraphs 3, 4 and 7 of my judgment demonstrate that I based my decisions that day on the findings previously made by HHJ Lloyd and by Mr Justice Francis on 9 December 2020 as well as the oral evidence the father gave to me. The father’s oral evidence before me, as summarised in my judgment, appears to have centered on his view that Mr Justice Moor had been wrong to make findings against him in relation to S’s injuries and ultimately her death. Thus, he said the wardship was not justified.

The application to set aside on behalf of the mother has caused me to reflect at length upon the protracted history of this case and my role in it. I have done so with an open mind. I do not agree with the submission that the order of 27 September 2019 set the tone of the case in relation to jurisdiction, which was then, in effect, unthinkingly followed. The chronology shows that the court did review the issue of jurisdiction specifically on 21 November 2019, again in August 2020 and then again on 9 December 2020. The very fact that the court changed the basis of jurisdiction from habitual residence to nationality shows the court was actively engaged with the issue and reviewed it regularly. In terms of my involvement in the proceedings, I accept that I relied heavily on the findings that had gone before when making the final wardship orders. Given that the last set of findings relevant to jurisdiction had been made by Mr Justice Francis on 9 December 2020 and nothing had changed since then, perhaps the question should be – why wouldn’t I?

All that said, I accept that the judge must always be astute to raise the issue of jurisdiction even if it has been overlooked by the parties - Re E, paragraph 36. Having reflected on what has happened in this case, I consider and accept that the court at an earlier stage could have proactively considered the issue of jurisdiction with more depth than it did. I accept, with the benefit of the argument now advanced before me, that I should have considered whether the orders made crossed the relevant statutory scheme in relation to jurisdiction.

I further accept that a court ought to give all parties a proper opportunity to adduce relevant evidence and make submissions in relation to jurisdiction - Re F, paragraph 12(ii). However, the context of this case highlights an irony: the orders show that active steps were taken to engage the mother in proceedings, and that she failed to take those opportunities. As far as this court is aware, she did not take any steps to have her voice heard until April 2023 when she made an application for permission to appeal. Until the Court of Appeal refused that application, the mother did not take the opportunity that had been there for her throughout on the face of the orders, all of which invariably stated that a party may apply to set aside or vary them upon giving 48 hours’ notice. I am left with the conclusion that the arguments which are now advanced on her behalf could have been determined so much earlier, if only she had engaged.

The argument based on the limitation of the parens patriae jurisdiction which is now raised on behalf of the applicant mother was not raised by any party until the applicant mother’s application for permission to appeal in April 2023. The argument is now presented to this court in support of the application to set aside the orders. The application is not supported by any statement of evidence. It is not asserted that there has been any change of circumstances which would justify discharging the wardship and its ancillary orders. Instead, the submissions are placed fairly and squarely before this court on the basis of legal argument that: (i) this court does not have jurisdiction; and (ii) if it does, ought not to have exercised it. It is to that argument I now turn.

By reason of section 2 of the British Nationality Act 1981, D is a British national. Relying on Baroness Hale in A v A above at paragraphs 60-63, I do not have any doubt that the inherent jurisdiction continues to apply to D.

On behalf of the applicant, I have been reminded of the limitation on the exercise of the inherent jurisdiction under the FLA 1986. In my view, the FLA 1986 only deals with private law proceedings - London Borough of Hackney v P (above) and at first instance ([2023] 1 FLR 512) at paragraph 25. The scope of the FLA 1986 in relation to the jurisdiction of the courts of England and Wales excludes the jurisdiction to make public law orders. The Children Act 1989 does not lay down a jurisdictional test in relation to a court’s jurisdiction to make public law orders. However, I agree with the analysis of Mr Justice MacDonald at paragraph 26 and following of Hackney v P above. The domestic jurisdictional foundation of public law orders follows a line of authorities which can be traced back to Re R (Care orders: Jurisdiction) [1995] 1 FLR 711. Putting matters shortly, the basis of jurisdiction is effectively the same as for private law orders – namely habitual residence, although jurisdiction can be based on presence where a temporary order is required to safeguard a child.

In this case, it is not asserted by any party that D was either present or habitually resident in this jurisdiction when the court was seized of the C66. A local authority can only make such an application with the permission of the court if the test within s.100(4) and (5) of the Children Act 1989 is met. On the facts of this case at the time the court was seized of the application, the court had reasonable cause to believe that if the inherent jurisdiction was not exercised D would be likely to suffer significant harm. Section 100(4)(b) of the Children Act 1989 was clearly met. In coming to that decision, I have very firmly in mind the submissions on behalf of the Guardian that it is hard to think of a case which meets that test but does not warrant the exercise of the inherent jurisdiction. I have reminded myself that at the time the court was seized, D was 5 days old. She was out of the jurisdiction with her mother who had a history of vulnerability to exploitative relationships. The father had been found to have killed S and the risk the father posed to other children had been found by Mr Justice Moor to be “unmanageable” because: (i) the injuries the father inflicted on S were over a considerable period of time and represented a sustained course of conduct; and (ii) he lacked insight. The mother and the maternal grandmother did not accept the risks and believed the father’s proclamation of innocence. D was with her mother who had fled this jurisdiction and was living with the paternal family in Northern Iraq, a location to which she had no connection. She did not speak the language and the FCDO advised against travel there. Standing back and looking at circumstances at the time this court was seized, they were very grave indeed. At that time, the result which the local authority wished to achieve could not be achieved through the making of any other order. Public law orders were not available to them because D was outwith the jurisdiction. Hence the provisions of s.100(4)(a) and (5) of the Children Act 1989 were met.

The previous paragraph highlights the tension at the heart of this case. The reason the local authority could not apply for any other order was because the child was not habitually resident in the jurisdiction, nor was she present. Hence the local authority could not bring public law proceedings to protect her. That is the very reason that on behalf of the mother it is argued that the court does not have any jurisdiction to make the orders or alternatively should not have exercised it because the wardship orders cut across the statutory scheme. It is, at the same time, the very reason the local authority made an application under the inherent jurisdiction. It is clear from all the papers in this case and from the reasons given on the face of the application itself that the local authority’s application was to protect and safeguard D. It is in that context that I have reminded myself that the local authority’s statutory duty to safeguard and promote the welfare of children in need and to provide them with accommodation is based on the child in question being in that local authority’s area – ss.17 and 20 of the Children Act 1989 in relation to England, and ss. 21 and 75 of the Social Services and Well-being (Wales) Act 2014 in relation to Wales. Given that D had never been in their area, the local authority actually had no statutory duty in this case to act to safeguard and promote her well-being.

Where does all that take me? 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.

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.

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.”.

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 Re M 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. In my judgment, that is the only reasonable conclusion I can draw from a consideration of the facts of this case. Those facts must be viewed in the context of the risk assessment of 25 September 2019 which clearly stated that if D was “in the UK or returns to the UK, care proceedings [are] to be issued upon the Local Authority being aware of the baby’s birth.”. That recommendation is in my view unequivocal. That assessment was the evidential basis upon which the C66 was issued by the local authority. In reality it sets out the reason the local authority applied for D’s return to the jurisdiction. It was to return her to the jurisdiction so that they could exercise a statutory duty to safeguard and protect her and so that public law proceedings could begin 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.

I have reconsidered, in the light of the submissions I have heard, the orders that have actually been made in this case. The first order of Mr Justice Francis was a bare return order. On the face of it, that order would not have crossed the statutory scheme but once it is considered in the context of the recommendations of the risk assessment, the reality is that its purpose was to secure return so that public law proceedings could be instituted. The orders of HHJ Lloyd of 6 August 2020, Mr Justice Francis of 9 December 2020 and myself of 17 March 2021 all stated that “the first respondent must return with D […] immediately to the UK for the purpose of a further assessment of her parenting capacity”. That was a court ordered assessment rather than one the local authority was required to carry out in the fulfilment of their statutory duties. I have therefore given careful consideration to whether those orders cross a statutory scheme or not. Ultimately, however, I have concluded that you cannot get away in this case from the risk assessment conclusions of 25 September 2019. Given that context, the reality of that assessment was that it would consider whether public law orders would be required in this case. 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.

In the circumstances, I intend at a short hearing that will be convened for the parties’ convenience to set aside the wardship orders in this case together with all orders made under that umbrella. At that hearing I will also hear any applications that arise from this judgment and the orders I intend to make.

That is my judgment.