M (Nationality Based Jurisdiction), Re

This matter comes before the court to determine whether the parents of the subject young person, M, should be given notice of these proceedings for a summary return order under the inherent jurisdiction, requiring M to be returned from the jurisdiction of Somalia to the jurisdiction of England and Wales. In circumstances I shall come to there is also an issue as to whether the current return order, made at the first hearing, should remain in place and in its current form.

M is aged nearly 17 and is a British citizen. M resides with his mother, the first respondent, and his siblings in Somalia. M’s father, the second respondent, resides in this jurisdiction. The application for a return order is made by M himself through his litigation friend and solicitor, Mr James Netto. He is represented at this hearing by Ms Ruth Kirby of King’s Counsel and Ms Adele Cameron-Douglas of counsel. In the context of the complex legal issues to which this case gives rise, I am extremely grateful to them for their comprehensive and erudite written and oral submissions assembled and delivered at short notice.

M asserts that he is being held in Somalia against his will through the actions of his mother. He further asserts that his welfare and fundamental rights are now at serious risk as the result of his declared apostacy with respect to his former Islamic faith. M asserts that this has led to threats posted online and by his mother and maternal family, including threats to kill, and threats to send him to a re-education facility at which he will be at risk of serious abuse.

The matter first came before Cusworth J in the Urgent Applications list on 7 July 2025. On that date, having heard submissions from Ms Cameron-Douglas, and based on the evidence then set out in the first statement of Mr Netto, Cusworth J made M a ward of court and made a without notice summary return order requiring M’s return to the jurisdiction of England and Wales. That return order is not directed at a person or body, but rather stipulates that “The child, [M], shall be returned to England and Wales forthwith”.

Cusworth J directed that the matter be listed before me for further consideration on 8 July 2025. On that date, I was concerned as to the effect of the return order in circumstances where it was being submitted that even giving the parents notice of the return order made by Cusworth J would place M in circumstances of grave risk. Specifically, that the order made on 7 July 2025 would thus result in M being removed from his family and from the jurisdiction of his habitual residence, to which he was removed by his parents lawfully six years ago at a time when there were no reported child protection concerns, and returned to this jurisdiction without his parents knowing this had taken place until after the fact. Further, on 8 July 2025, it remained the case that no placement for M had been identified in this jurisdiction. Were it to prove impossible to locate any of M’s family in this jurisdiction, in her careful and considered submissions at the hearing on 8 July, Ms Cameron-Douglas argued that upon his return M could consent to his own accommodation in local authority care under s.20 of the Children Act 1989 and would be assessed as a child in need, the local authority for the area in which M arrives in this jurisdiction owing certain relevant duties under Part III of the Children Act 1989 to children in M’s position.

A further complication apparent at the hearing on 8 July 2025 involved the nature of the child protection concerns that were said to justify the parents not being given notice of the summary return order made on 7 July 2025. The harm that is said to engage the court’s jurisdiction in respect of M as a British citizen is a matter of some complexity. Deciding whether M requires the protection of the High Court as a British citizen involves, in part, consideration of the extent to which it is harmful to him for his family to insist that he receives education or training in a mainstream religion. Within this context, the court is being asked to remove M from the care of his family, and the country in which he is habitually resident, without informing his family, in part on the grounds that they are seeking to compel him to practice or to continue to practice Islam against his wishes.

Finally, in the circumstances I have described the forensic difficulty that attends all without notice applications is particularly acute in this case. Without notice of the application being given to those with parental responsibility for M prior to the implementation of the return order, and in circumstances where M is the only party, the court has heard no challenge to the evidence relied on and received no opposing submissions. In such circumstances, if the court engages its protective jurisdiction it does so based on the acceptance, without more, of the evidence and submissions made on behalf of M and relies on them to make a draconian order that summarily removes M from the jurisdiction of his habitual residence and interferes with the parents’ Art 8 right to respect for family life before the parents are aware that the order has been made.

The matter having been listed before me on 8 July 2025 for further consideration, and where (a) the court is required to keep the question of notice under review, (b) the return order made on 7 July 2025 was not directed at an identified individual and (c) the question of where M would live in this jurisdiction remained outstanding, I was satisfied that it was appropriate to reconsider both the question of notice and the question of the continuation and proper form of the order. Accordingly, I listed the matter for a further hearing to consider the following issues:

The background is set out in two statements from Mr Netto. M was born in the United Kingdom in 2008 and is now aged nearly 17 years old. He is a British Citizen and went to primary school in the United Kingdom. M describes himself as coming from a “very religious Somali clan” and that his father is a Salafi Sheikh. He describes his father’s views as “extreme”. M stated that his father would regularly send him very conservative religious material, and that his father’s preferred preacher is Ahmad Musa Jibril. For reasons I shall come to, this has preoccupied M in circumstances where one of the sermons of Ahmad Musa Jibril is titled “Can Muslims Keep Ties with Apostate Relatives?”, with his conclusion, taken from the TikTok video on which the sermon appears, being that such a course is “even worse than an original kafir (or “unbeliever”)…with the punishment being even worse…they must be executed under Islamic State rule”.

Some six years ago, M’s mother relocated with M and his siblings to Somalia. M has informed Mr Netto that the motivation for the family’s relocation was his mother’s concerns about the ‘Western’ influence of life in this jurisdiction. M contends that, thereafter, he was forced to remain in Somalia and his passport was removed and held by his mother.

M states that in early 2025 he began questioning his Islamic religion. He thereafter began searching online for information about leaving Islam. M is an active member of a number of online forums concerning leaving the religion of Islam, including sites on which he has engaged in extensive discussions of apostasy. In June 2025, M was “doxed” (Footnote: ¹) and his private information exposed online. Thereafter he was sent a video that M described as “like an ISIS beheading video” depicting a western looking man kneeling in orange clothing with a male standing over him in black clothing. In July 2025, M began to receive messages referring to him leaving Islam and making threats, including death threats. Whilst he tried to brush them off, the threats left him severely shaken. For example:

“It’s just a matter of a few days until we find out where you are. Your name is [M]. Beautiful patience. Indeed, the promise of Allah is coming. I swear by Allah, we will not let you rest / we will disturb you. We already have enough information to find you. We’re still in Mogadishu together. And we are currently working on locating you.”

And:

“Look, I don’t care about the men you’re talking about. But every disbeliever like you has been eliminated since the time religion began. Your kind of disbelief is exactly what we've been eliminating. Islam is what rules the world. We are coming back. Go hide in a toilet. Disappear forever. 🗡 [knife emoji]”

In addition to exposing him to these threatening messages, M’s activity on online forums also allowed him to alert others to his circumstances in Somalia and to receive advice from other contributors regarding how he may seek safety. As a result of assistance by members of the public on the online forums, M sent an email to the British High Commission in Nairobi entitled “British national minor in danger without documents in a dangerous country”. The email is striking in its measured tone, part of which states as follows:

“Please consular officer help me, I’m feeling very unsafe. My mother is very abusive and dangerous. Any day I can be locked away never to see sunlight. I know I am being very rude and impolite to the government but please save me. I’d even promise to join the UK armed forces just to be safe from here. If you’re reading this email, thank you very much.”

On 3 July 2025, a member of the public unrelated to M telephoned Mr Netto’s firm and reported seeing what were described as “concerning” posts on an online forum from a young person who was stating that he had been retained in Somalia and was unable to leave. The member of the public, from whom the court does not have a statement, spoke to M to see whether he could assist him having been alarmed by the content of M’s posts. On that date, Mr Netto first spoke to M. In his statement, Mr Netto describes that WhatsApp call as “particularly challenging and indeed distressing”.

During the course of his communication with Mr Netto, M has informed him of the following relevant matters:

Save for an unmanned Embassy office, the British Government does not have a diplomatic presence in Somalia. However, M has engaged in correspondence with the British High Commission in Nairobi. On 8 July 2025, Mr Netto spoke to a representative of the Foreign, Commonwealth and Development Office (hereafter ‘FCDO’) who confirmed that the FCDO was aware of some of the significant challenges faced by M and other British citizens in his position, including the practice of Somali family members engaging local police with a view to arbitrarily detaining children and young people.

Within this context, Mr Netto requested clarification as to whether the FCDO would be in a position to assist in removing M from Mogadishu and, if so, whether they would be in a position to provide him with emergency travel documentation in circumstances where M’s passport is currently held by his mother and he is unable to locate it in the family home. The FCDO indicated that Emergency Travel Documents could be produced at the British High Commission in Nairobi and couriered to the British Embassy Office in the secure zone in Mogadishu for collection. The FCDO further confirmed that, generally, M would need an adult to accompany him to the Embassy, through the airport and on to the flight. A person has been identified to take on this responsibility, about whom I say no more in this judgment.

M is adamant that if his mother is given notice of these proceedings she will act to frustrate any orders of the court made to facilitate his return to the jurisdiction of England and Wales. In a WhatsApp message to Mr Netto M stated that:

“to put it short, if she finds out [about the case] when I’m in Somalia, I will go to a facility [because] I tried to do this. If I am in the UK when she finds out, she’s not going to talk to me again and block me from everyone”

And:

“…If that happens, I’m thankful for everything you’ve done but scrap the case because I will be somewhere else … if they [the court] decide to contact my parents I want to scrap the case”

Finally, M yesterday provided a letter for me to Mr Netto, which he entitled “My personal statement”. Part of that personal statement reads as follows:

“As Mr Netto told you I'm a ex Muslim in which Islam “Whoever changes his religion, kill him.” — Sahih al-Bukhari, Hadith 3017 so I obviously fear for my life ... so I informally beg you to not notify my parents while I'm in Somalia... I'm sorry for my writing to be informal and full of grammatical errors but these days I'm full of worry and stress one look on my phone could get me killed for my apostasy or kidnapped into a facility for a very long time...Thank you for your time.”

The ‘modern’ formulation of the jurisdiction based on nationality has been established since at least the 1850s with the House of Lords decision in Hope v Hope (1854) 4 De GM&G 328, 344-5. The principle underpinning the existence of the jurisdiction is neatly summarised in Re P (GE)(An Infant) [1965] Ch 568 by Lord Justice Pearson:

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

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

The jurisdiction should be sparingly exercised when the infant is abroad, even if he is of British nationality. The courts of different countries are expected to collaborate for the benefit of D the infant, but there may be difficulties of enforcement and there is the risk of conflict between an order of the English court and the order of a court of the country in which the infant is present and resident.”

The exercise of jurisdiction based on nationality is not the exclusive preserve of the jurisdiction of England and Wales. In HF and Others v France Application Nos 24384/19 and 44234/20 at [85], the ECtHR recalled in the context of Art 3(2) of Protocol 4 (a provision not ratified by the United Kingdom) that “The bond of nationality justifies the exercise by the State of its jurisdiction in respect of individuals when they are abroad, as illustrated by the principle of jurisdiction on the basis of nationality in French criminal law, known as the active personality principle”. Recent jurisprudence from the UN Committee on the Rights of the Child made clear that the United Nations Convention on the Rights of the Child, of which the United Kingdom is a signatory, also applies extraterritorially and therefore state parties that are effectively able to prevent the prolonged detention of children, who are their nationals, by repatriating them have a “positive obligation to protect these children from the imminent risk of violation of their right to life and an actual violation of their right not to be subjected to cruel, inhuman or degrading treatment” (see LH et al v France (Decision adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communications No. 79/2019 and No. 109/2019)).

In A v A (Children Habitual Residence) [2013] UKSC 60, [2014] AC 1 the Supreme Court has confirmed that the jurisdiction based on nationality continues to exist in so far as it has not been removed by the terms of the Family Law Act 1986, which in turn engages the jurisdictional provisions of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereafter the “1996 Hague Convention”). In this context, the analytical route required to determine whether a case is one in which the court has the jurisdiction to make orders in respect of a child on the ground of their British citizenship is complex to say the least.

In cases where the 1996 Hague Convention applies, the Convention provides a complete framework for determination of the question of jurisdiction and it is not possible to invoke the nationality based jurisdiction (see Re J (1996 Hague Convention)(Morocco) [2015] EWCA Civ 326, [2015] 2 FLR 513). In this case however, the 1996 Hague Convention does not apply as M is habitually resident in a non-Convention state at the date on which the court is considering making substantive orders (see Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659, [2023] 2 FLR 1247). Accordingly, the jurisdictional analysis moves to consideration of the Family Law Act 1986 (hereafter “the 1986 Act”) and the question of whether the jurisdiction based on nationality is available moves to the nature of the order applied for.

Pursuant to s.1(1)(d) of the 1986 Act, an order made under the inherent jurisdiction will fall within the scope of the 1986 Act where it concerns care, contact or education. In the circumstances, such an order cannot be made under the jurisdiction based on nationality as this would cut across the statutory scheme. However, where the 1996 Hague Convention is not engaged, and where the order sought is not one concerning care, contact or education within the meaning of s.1(1)(d) of the 1986 Act, the order sought may be made under the jurisdiction based on nationality, subject only to the limitations on the use of that jurisdiction.

The authorities prescribing the use of the jurisdiction based on nationality have centred on the extent to which the use of the nationality based jurisdiction is governed by a cautionary principle. In In Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] AC 606, Baroness Hale drew a distinction between approaching the use of the jurisdiction with great caution or circumspection, which is justified, and some a priori classification of cases according to their extremity, which is not. Baroness Hale articulated the essential question as being whether the exercise of the jurisdiction is necessary to avoid the child’s welfare being beyond all judicial oversight. By contrast, in his dissenting judgment in In Re B (a Child) (Habitual Residence: Inherent Jurisdiction),Lord Sumption cautioned that, unless reserved for exceptional cases, the potential for the jurisdiction to cut across the statutory scheme is very considerable and appeared to confine the jurisdiction to cases of abduction “before the enactment of a statutory jurisdiction to deal with them” and cases where the child is in need of protection against some personal danger.

It is important to note that, in circumstances where the appeal in In Re B (A Child) (Habitual Residence: Inherent Jurisdiction) was determined by reference to the issue of habitual residence, the comments on the scope of the jurisdiction based on nationality were obiter. Most recently, in Re M (Exercise of Inherent Jurisdiction) [2020] EWCA Civ 922, [2021] Fam 163, Moylan LJ articulated that the question to be asked when deciding to engage the jurisdiction based on nationality as follows (emphasis in the original):

“[105] ...following the obiter observations in In re B, whilst the exercise of the inherent jurisdiction when the child is habitually resident outside the United Kingdom is not confined to the ‘dire and exceptional’ or the ‘very extreme end of the spectrum’, there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction. If the circumstances are sufficiently compelling then the exercise of the jurisdiction can be justified as being required or necessary...”

Within the foregoing context, whilst there is no defined list of orders not concerning care, contact or education that come within the scope of the jurisdiction based on nationality, it is plain that the jurisdiction based on nationality is protective in nature and may be invoked where there are circumstances sufficiently compelling to make it necessary to protect the child or young person. In this context, the jurisdiction has in the past been invoked in cases requiring the return of an abducted child (as in A v A (Children Habitual Residence)) and in cases where children have been abandoned abroad (see for example, SW v MW (Transnational Abandonment) [2021] EWHC 3411 (Fam)). In Re M (Wardship: Jurisdiction and Powers) [2015] EWHC 1433 (Fam), [2016] 1 FLR 1055, Sir James Munby P utilised the jurisdiction based on nationality in a radicalisation case in circumstances where he considered that cases which engaged the child’s Art 2 right to life and Art 3 right to freedom from torture or inhuman or degrading treatment or punishment will “surely” amount to circumstances sufficiently compelling to make it necessary to engage the jurisdiction.

Art 2 of the ECHR has been described as fundamental by the ECtHR, enshrining the right to life which, in peacetime, cannot be derogated from under Art 15. Together with Art 3, it enshrines one of the basic values of democratic societies. As such it must be strictly construed (see McCann and Others v the United Kingdom (1996) 21 EHRR 97 at [147]). Art 3 is closely bound with respect for human dignity (see Bouyid v Belgium (2016) 62 EHRR 32 at [81]). The prohibition in Art 3 is absolute, no derogation from it being permissible under Art 15(2), even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances irrespective of the conduct of the person concerned. There is a threshold of severity to reach for Art 3 to be engaged. The assessment of severity is relative and depends on the circumstances of the case. Factors will include the duration of the treatment, its physical or mental effects, and in some cases, the sex, age and state of health of the victim. Other factors may be considered such as (a) the purpose for which the ill-treatment was inflicted, together with the intention of motivation behind it (b) the context in which the ill-treatment was inflicted and (c) whether the victim is in a vulnerable situation (see Khlaifia and Others v Italy Application No 16483/12 at [160]). The court’s approach to the interpretation of Arts 2 and 3 must be guided by the fact that the object and purpose of the Convention, as an instrument for the protection of individual human beings, requires that its provisions must be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v the United Kingdom).

Finally, in Re S (Children) (Inherent Jurisdiction: Setting Aside Return Order) [2021] EWCA Civ 1223, [2022] Fam 237, Baker LJ highlighted that an essential element of deciding whether to make an order under the jurisdiction based on nationality is an assessment of the enforceability of the order proposed, although he placed consideration of the question of enforcement firmly after the question of the child’s welfare:

“More substantially, as the so-called radicalisation cases make clear, the "first and foremost" assessment which the court required to carry out is not the enforceability of its order but the welfare of the children. It is only after deciding what orders are required to secure the children's welfare that the court should turn to consider enforceability, and when it does consider that matter it will look first at the likelihood of the person against whom the order is made complying with the order and then the means of enforcing compliance if he does not. There may be various means of securing compliance without resorting to reciprocal enforcement in the courts of the other country. In the present case, as Mr Tyler observed, there are several reasons why the father may be inclined to comply with an order even though it may not be enforceable in Libya. For those reasons, to describe this exercise as futile is, to my mind, not correct.”

The formulation adopted by Baker LJ in Re S (Children) (Inherent Jurisdiction: Setting Aside Return Order) highlights the importance, ordinarily, of the order being directed at an individual or body against whom enforcement can be sought if the order in question is not complied with. That raises particular problems in the circumstances of this case, and may well do in cases like it, to which I will come in due course.

In Re S (A Child)(Family Division: Without Notice Orders) [2001] 1 WLR 211, Munby J (as he then was) set out the strict principles governing without notice applications in family proceedings. In that case, Munby J restated the following cardinal principles, subject to the need to recognise that in cases involving a child the court may have to act swiftly and decisively in order to safeguard the child's welfare:

Reflecting the decision in Re S (A Child)(Family Division: Without Notice Orders), and later decisions, the Practice Guidance: Case Management of International Child Abduction Proceedings (which, pursuant to paragraph 1.1(b) of the Guidance applies to summary return proceedings under the inherent jurisdiction) states as follows:

“2.2.

The evidence in support of a without notice application must be as detailed and precise as possible, having regard both to the material provided by the applicant and transmitted by the Central Authority of the Requesting State and the high duty of candour required with respect to without notice applications. Unparticularised generalities will not suffice. Sources of hearsay must be identified, and expressions of opinion must be supported by evidence and proper reasoning. The evidence should set out the orders sought, together with fully particularised reasons. Specifically, with respect to the narrow circumstances justifying a without notice application set out in para 2.1 above:

.../

(b)

Where the justification for proceeding without notice is said to be a compelling case that the child's welfare will be compromised if notice is given, the evidence in support of the without notice application must demonstrate a real risk that, if the respondent is alerted in advance, the welfare of the child will be compromised, whether by the respondent thwarting the court's order or otherwise. Where the risk is said to be the removal of the child from the jurisdiction, the evidence must address (i) the magnitude of the risk that the respondent will be minded to remove, (ii) the magnitude of the risk that, if the respondent is minded to remove, he or she will be able to evade protective measures put in place by the court and (iii) the magnitude of the consequences for the child if the protective measures are evaded.”

And:

“2.5

It is important that any without notice application is prepared in a manner that maximises the chances of the on notice hearing being effective. To this end, the without notice application and the evidence in support must contain all the information in the possession of the applicant that will or may assist in the prompt execution of any orders made. At the conclusion of a without notice hearing at which orders have been made, the applicant must prepare an attendance note that should be provided to the respondent, or his or her solicitors once known.”

Once again, the question of notice in this case presents a particular difficulty in circumstances where M contends that to give his parents and / or family notice of the return order prior to it being implemented, by his removal from the jurisdiction of Somalia, would cause the breach of his Art 2 and Art 3 rights the order is designed to prevent to eventuate.

Having regard to the careful and comprehensive submissions made by Ms Kirby and Ms Cameron-Douglas, I am satisfied that it remains appropriate to facilitate the return of M to the jurisdiction of England and Wales by continuing the return order under the nationality based protective jurisdiction of the court, albeit with a slight variation in the terms to the order made on 7 July 2025 by Cusworth J. I am further satisfied that it is appropriate for these proceedings to continue at this stage on a without notice basis and for this approach to extend, exceptionally, to not serving the return order on the parents until after it has been implemented. My reasons for so deciding are as follows.

The court’s protective common law jurisdiction based on nationality is long established. Having regard to the obiter observations of the Supreme Court in In Re B (A Child) (Habitual Residence: Inherent Jurisdiction) and the judgment of the Court of Appeal in Re M (Exercise of Inherent Jurisdiction), the court must ask itself whether the circumstances of the child or young person are sufficiently compelling to make it necessary to exercise the court’s nationality based protective jurisdiction. Various indicators of ‘necessity’ have been advanced in the authorities, including the obiter view of Baroness Hale that the essential question as being whether the exercise of the jurisdiction is necessary to avoid the child’s welfare being beyond all judicial oversight and the view of Sir James Munby in Re M (Wardship: Jurisdiction and Powers) that cases in which the child or young person’s Art 2 right to life and / or Art 3 right to freedom from torture, inhuman or degrading treatment or punishment are engaged will render it necessary to engage the jurisdiction. In this case, I am satisfied that there is strong prima facie evidence demonstrating that M’s Art 2 right to life and Art 3 right to freedom from torture, inhuman or degrading treatment or punishment are engaged and that there is a real risk that those rights will be breached having regard to the potential harm to M consequent on his now revealed apostacy.

By reason of M having been ‘doxed’ online, it is clear from the communications evidenced in the bundle that M is considered an apostate by others in his family and community and has been threatened with grave and possibly fatal physical harm as a result. Whilst the court does not have a statement of evidence from the Secretary of State for the Foreign, Commonwealth and Development Office, it is clear that the FCDO consider that M’s situation in Somalia merits him being provided with emergency travel documents to enable him to leave the country as a matter of urgency, the FCDO being prepared to courier emergency travel documents into a country in which the United Kingdom does not have a staffed diplomatic mission.

The threats of physical harm and death against M arise within a jurisdiction in respect of which there is publicly available information, in the form of country reports from the UK Home Office, the US State Department and other government agencies. That information corroborates the assertions made by M regarding the danger of his current situation. Whilst such information is regularly used in the context of immigration and asylum cases before the Tribunal, such information ordinarily comes before the family court by way of an expert report. However, in circumstances where the court does not have time in the current urgent context to instruct an expert to provide evidence on the situation in Somalia before reaching its decision, and subject to the need to assess their reliability, treat them with appropriate caution and recognise that they have not been the subject of forensic challenge, I consider it appropriate to take judicial notice of country guidance and background reports produced by government bodies, including the UK Home Office and the US State Department.

The US State Department 2023 Country Reports on Human Rights Practices: Somalia details that Al Shabaab mete out punishment according to the group’s interpretation of Islamic law. The US State Department’s Somalia 2023 International Religious Freedom Report notes this includes public execution of those considered committing blasphemy. This situation represents an appreciable risk to M in circumstances where his mother is said by him to have spoken positively about the Al-Shabaab organisation and has threatened to report M to the authorities and have him arrested and where his father has provided him with sermons from an Islamic preacher that calls for the execution of apostates under Islamic State rule.

M’s account, and the concerns he expresses in it, is also corroborated by other sources with regard to the practice of “Dhaqan Celis”. On behalf of M, Ms Kirby and Ms Cameron-Douglas rely on article in The Guardian by Nimo Omer dated 12 March 2023 concerning the detention, physical and sexual abuse of young people at sites in Somalia implementing “Dhaqan Celis”. The US State Department 2023 Country Reports on Human Rights Practices: Somalia details the position as follows under the heading ‘Child Abuse’:

“The practice of asi walid, whereby parents placed their children in dhaqan celis (“returning to (Somali) culture”) boarding schools, other institutions, and sometimes prison for disciplinary purposes and without any legal procedure, continued throughout the country. Physical abuse and sexual assault in these facilities were common.”

Also exhibited to Mr Netto’s statement on behalf of M is a document produced by the Danish Government’s Immigration Service, entitled “Re-education Trips of Somali Children and Youth” dated 17 June 2025, which sets out a more detailed and up to date account of this issue. The following extracts are relevant:

“This report examines the phenomenon of dhaqan celis — re-education trips undertaken by Somali background children and youth from Western countries, particularly Denmark, to countries such as Somalia, Kenya, and other Muslim-majority nations. These trips, often initiated by parents, are framed as cultural rehabilitation efforts meant to restore traditional Somali and Islamic values. While some families see these trips as a way to strengthen identity, discipline children, or address behavioural and health concerns, the practice has raised increasing alarm among Western authorities due to the serious risks and rights violations involved.

.../

[Children and young people] may not only be exposed to rehabilitation centres if sent to Somalia or Kenya. They may also be exposed to other types of institutions such as Quran schools (dugsi), madrasas, mental health institutions, and healing centres. These institutions differ significantly in purpose, structure, and regulation. However, they are sometimes referred to interchangeably by different sources, which can obscure the actual conditions and level of care provided. While some offer standard religious or educational instruction, others are unregulated and may subject youth to harmful practices, including corporal punishment, isolation, or coercive treatment methods... (p.2)

According to testimony given by a former resident of a rehabilitation centre in Mogadishu to The Wall Street Journal in 2022, movement within the facility was tightly controlled. The minimum stay was three months, and contact with the outside world was severely restricted — phone calls, for example, were only allowed after three weeks. Furthermore, surveillance was constant; cameras sent footage to a central office, where administrators monitored the compound. (p25)

.../

There is extensive documentation of abuse and ill-treatment within these rehabilitation centres. Both boys and girls have been reported to be subjected to physical and sexual abuse.

It has been reported by several sources that punishment at these centres can be severe. To mention a few: An article by Wall Street Journal from 2022 mentioned some centres that locked individuals, who violated centre rules, in isolated rooms surrounded by electrified wire and razor coils — some residents spent days and nights chained in a facility. As an example, the article mentions a former resident being punched in the face until he bled and being doused with urine and cold water for minor violations, such as failing to memorize Quranic verses. In addition, interviews conducted by The Guardian in 2023 with young people who had been confined in these centres also revealed accounts of beatings, solitary confinement, and psychological abuse. One interviewee described being beaten into submission, while another reported that sexual abuse, including of minors under 16, was common. (p26)

.../

Children and youth returning from re-education trips often suffer from serious physical and psychological problems that can persist for years — especially those who have been to rehabilitation centres. There are cases of people who suffer long-term physical injuries, such as difficulties walking due to having been beaten on their feet or having worn leg chains for extended periods of time. A report stated that young adults who remained in Somalia past the age of 18 often suffer from deep psychological trauma, a lack of family contact, and may survive through criminal networks. A source noted that some individuals, rescued from rehabilitation centres, it is difficult for them to reintegrate in the country of residence because of the deep and lasting psychological scars of the experience. (p28)”

I am further satisfied that there is prima facie evidence that M is not able to rely on his mother and wider family to keep him safe within the foregoing context in light of his declared apostacy. The US State Department’s Somalia 2023 International Religious Freedom Report details a strong societal pressure to adhere to Sunni Islamic traditions, with those suspected of apostacy, including conversion, reportedly facing imprisonment, harassment, and intimidation, including death threats, by members of their community with conversion from Islam to another religion seen as a betrayal of family and clan. This is consistent with M’s assertion that during arguments, his mother has stated that she could “kill her children” as she believes that this is permitted by Islam and has also threatened to report him to the authorities and have him arrested. The evidence suggesting the abuse of M’s brother at a “Dhaqan Celis” facility, including beatings in which audio evidence provided by M suggests a family member has taken part, reinforce the conclusion that members of M’s family in Somalia are unlikely to react sympathetically to his apostacy and present a risk of harm to him.

I am likewise satisfied that, whilst he remains in the jurisdiction of Somalia, there is cogent evidence that M’s welfare will remain beyond all judicial oversight, notwithstanding what I have concluded are the grave, and potentially fatal, risks to his welfare.

The use of the protective jurisdiction based on nationality has sometimes been described as an anomaly (see, for example, In Re B (A Child) (Habitual Residence: Inherent Jurisdiction) per Lord Sumption at [81]). This view is understandable in the context of habitual residence now being, both domestically and in most international instruments concerning children, the primary connecting factor determining jurisdiction with respect to a child. The fundamental principle that underpins habitual residence as the primary connecting factor determining jurisdiction is that it is ordinarily in the child’s best interests to have his or her welfare determined in the jurisdiction with which he or she has the closest family and social connection. However, the efficacy of that principle is, in my judgement, much reduced in this case where the jurisdiction of the child’s habitual residence is one in which the rule of law has been significantly undermined, such that it lacks the legal and social institutions to effectively protect the child’s welfare.

The term “failed state” has been the subject of justified criticism and is certainly too broad a term to be of any use in the context of a considered legal analysis. However, it is plain both from the evidence comprising M’s account to Mr Netto, and publicly available information from country reports by state agencies regarding the current situation in Somalia, that the rule of law currently faces very significant challenges in that jurisdiction. The US State Department 2023 Country Reports on Human Rights Practices: Somalia details a civil judicial system that remains dysfunctional, with some courts depending on dominant local clans and associated factions for their authority. There is no functioning formal judicial system in al-Shabaab-influenced areas, and al-Shabaab enforce a strict form of Sharia that imposes heavy penalties, including death, for certain offences. This is consistent with M’s account of his mother engaging with the al-Shabaab authorities in the absence of a functioning justice system and seeking redress from those authorities. There is no evidence before the court to suggest that Somalian government agencies or non-governmental organisations are in a position to provide child protection services to M.

In the foregoing circumstances, I am satisfied that M’s welfare will remain beyond all judicial oversight if he remains in the jurisdiction of Somalia. In light of the social and political situation in that jurisdiction, the ordinary benefits of ascribing to the jurisdiction of the child’s habitual residence the task of determining the child’s welfare do not flow in this case. The breakdown of the rule of law leads inevitably to the weakening of the justification for respecting the jurisdiction of the child’s habitual residence as the jurisdiction best placed to determine the child’s welfare, an integral element of which is protecting and promoting the child’s fundamental rights. Further, whilst mindful of the principles of comity, it is difficult for this court to apply the concept of comity (whether that elastic concept is narrowly or broadly construed) with a State that lacks the capacity to enforce its own laws and fulfil its international obligations with respect to children’s welfare.

As noted above, the court does not have the benefit of competing arguments against invoking the jurisdiction based on nationality, in circumstances where this application proceeds without notice to the parents of M. Were the parents to be before the court, it may be anticipated that they would point out to the court that M was moved to the jurisdiction of Somalia lawfully six years ago and at a time when there were no child protection concerns expressed in this jurisdiction, that Islam is a mainstream religion, that they have parental responsibility for M and that they should be permitted, as M’s parents exercising that parental responsibility, to encourage him to follow the religion of his family and his upbringing. It may further be anticipated that they would seek to rely more broadly on the right to freedom of thought, conscience and religion in international law. However, whilst I acknowledge and have given careful consideration to these points, they do not act to outweigh the matters that lead to the conclusion that it is necessary in this case to afford M this court’s protection as a British citizen.

I acknowledge that in continuing the return order made on 7 July 2025, the court interferes with the Art 8 right of the parents for respect for their family and private life. In this context, however, the court is required to balance the need to protect those Art 8 rights with need to protect the absolute Art 2 and Art 3 rights of M to life and to freedom from torture, inhuman or degrading treatment or punishment. Art 8 requires that the domestic authorities to strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see Abdi Ibrahim v Norway Application No 15379/16). The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the parents. There must exist some other circumstances pointing to “necessity” of the interference with the parents’ rights under Article 8 to enjoy a family life with their child (see Strand Lobben and Others v Norway (2020) 70 EHRR 14).

As set out above, I have considered the degree of the risk to M, which I consider to be a real risk, the complete absence of available protective factors in Somalia, including the inability of the mother to protect M. The degree of the risk, to which I am satisfied that M is currently exposed in Somalia, is central to the issue of proportionality and to the question of whether a less intrusive measure that does not unacceptably compromise the objective of protecting the child might be the proportionate solution. Balancing those matters against, the nature and extent of the interference with family life which the return order may cause, namely the removal of M from the mother’s care and from the country of his habitual residence without notifying her, I remain satisfied that that such an order is the only proportionate means of protecting M from a grave risk of harm which, if manifested, would breach his Art 2 and Art 3 rights.

With respect to the right to freedom of thought, conscience and religion, in affording M protection based on his British nationality, this court is not seeking to prohibit the parents’ practice of Islam, but rather to protect M from the clearly evidenced risk of harm that arises from the reaction to his declared apostacy and from the manner in which the evidence shows he would likely be compelled by one or both of his parents to receive education in, or to practice, the religion if he were to continue to refuse. In this context, the court is not circumscribing parental authority based on a distinction essentially deriving from religious considerations, which would risk a violation of Art 8 read in conjunction with Art 14 (see for example Hoffmann v Austria (1994) 17 EHRR 293). As L’Heureux-Dube J noted in the Canadian case of P v S 108 DLR (4^th) 287 at 317:

“[I]n ruling on a child’s best interests, a court is not putting religion on trial nor its exercise by a parent for himself or herself, but is merely examining the way in which the exercise of a given religion by a parent throughout his or her right of access affects the child’s best interests...As the court has reiterated many times, freedom of religion, like any freedom, is not absolute. It is inherently limited by the rights and freedoms of others. Whereas parents are free to choose and practice the religion of their choice, such activities can and must be restricted when they are against a child’s best interests, without thereby infringing the parents’ freedom of religion.”

Having regard to the matters set out above, I am satisfied that the circumstances of M in the jurisdiction of Somalia are sufficiently compelling to make it necessary, in this case to exercise the court’s protective nationality based jurisdiction to ensure the protection of M’s welfare. Having determined that it is open to the court to continue to exercise its protective jurisdiction based on M’s nationality, I am further satisfied that it is necessary to continue the return order in respect of M, requiring his return to the jurisdiction of England and Wales, in order to achieve that aim but to vary the order so that it is directed against M’s parents.

For the reasons I have set out, on the evidence available to the court, the question of whether the court has jurisdiction in respect of M under the nationality-based jurisdiction, and of whether that jurisdiction should be exercised, are relatively clear cut. The greater complication is the question of whether it is possible to grant an order that is enforceable.

Continuing a return order that is not directed against any individual creates difficulties of enforcement, in that there is no legal entity against whom the order can be enforced if it is breached. During the course of the hearing, I gave some consideration to whether the order could be worded using a contra mundum formula that binds all who have notice of it. However, on further reflection, this also creates difficulties of enforcement where, on the facts of this case, those who are required to act on the order having been given notice of it are very unlikely to have the authority, or to be able to obtain authority from the relevant government agencies, to return M from the jurisdiction of Somalia to the jurisdiction of England and Wales pursuant to that order.

This leaves a return order made against the parents in the ordinary form. The difficulty with this course is that I am satisfied, for reasons I shall come to, that notifying the mother or the father of the proceedings, including by serving upon them any return order before M is back in the jurisdiction, would frustrate the aim the court is seeking to achieve in affording him protection by compelling his return to this jurisdiction. On the face of it, making a return order directed against the parents that cannot be served on them until after the order has been executed would be at best artificial and at worst illogical. More fundamentally, it would plainly create difficulties of enforcement. The parents would not be made aware of what the court requires of them and the order would not be enforceable against them, for example if they sought to frustrate M’s removal having discovered his intentions through other means. Against these matters, however, on the evidence currently available to the court, M’s intentions are not yet discovered and this court needs to afford him protection by compelling his return to this jurisdiction. Being far from the court’s reach in such circumstances, the mother is in a powerful position to frustrate the order should she become aware of it by being given notice of the order prior to M being back in this jurisdiction. In the circumstances described above, M would have no alternative protective procedures to turn to should the mother act in that manner.

Having regard to the matters set out above, and where I am satisfied that the order needs to be directed at M’s parents (and, in the normal way, any other person who knows of the order and does anything that helps of permits the parents to breach it), the fundamental question for the court is whether it is appropriate to make a return order directed against one or both of M’s parents in respect of which they cannot be given notice until after that order has been implemented. I am satisfied that it is. The reasons I have given justifying the return order as necessary to protect M from a breach of his Art 2 and his Art 3 rights also, in my judgement, lead to the conclusion that serving his parents with a copy of the return order before it is implement is likely to result in M being denied the protection against such breaches that the court is satisfied he requires.

I acknowledge the difficulties of enforcement to which withholding service of the return orders from the parents until after the order has been implemented give rise. The parents would not be made aware of what the court requires of them and the order would not be enforceable against them for as long as they remain unaware of it. Within this context however, I again recall the observation of Baker LJ in Re S (Inherent Jurisdiction: Setting Aside Return Order) that the “first and foremost” assessment which the court is required to carry out is not the enforceability of its order, but the welfare of the subject child. In the circumstances, enforceability is not irrelevant, but it is secondary to the question of welfare. I take this to mean not that enforceability need not be considered at all, but that it should be considered in the context of the facts of the specific case, whilst maintaining an acute focus on the welfare of the subject child.

I further acknowledge that in making a return order and withholding service of that order on the parents until such time as it has been implemented engages their Art 6 right to a fair trial. The rights under Art 6 are not absolute. However, limitations on a person’s rights under Art 6 must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired and limitation will not be compatible with Article 6(1) if it does not pursue a “legitimate aim” and if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” (see Ashingdane v UK at [57]; Fayed v UK Application No 17101/90 at [65]; Markovic and Others v Italy, Grand Chamber 1398/03 at [99]).

Within this context, and subject to the rigorous safeguards summarised by Munby J (as he then was) in Re S (A Child)(Family Division: Without Notice Orders), it has long been accepted in proceedings relating to children that a court may proceed without notice to a party on certain narrowly defined grounds, including where it is necessary to do so in circumstances where, if the party is alerted in advance, the welfare of the child will be compromised, whether by the respondent thwarting the court's order or otherwise (in the domestic context, and again subject to rigorous safeguards, a court may make and implement an emergency protection order where there are “compelling reasons to believe that the child’s welfare will be compromised if the parents are alerted to what is going on” (X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341 at [53]). The ECtHR concluded in Haase v Germany [2005] EHRR 19 at [95] that:

“[95] The Court accepts that when action has to be taken to protect a child in an emergency, it may not always be possible, because of the situation, to associate in the decision-making those having custody of the child. Nor may it even be desirable, even if possible, to do so if those having custody of the child are seen as the source of an immediate threat to the child, since giving them prior warning would be liable to deprive the measure of its effectiveness.”

Considering first the magnitude of the risk that the parents will seek to frustrate the order of the court should they become aware of it; there is a real risk, in my judgement, that if the parents are alerted in advance the safety of M will be significantly compromised by them thwarting the court's order, leaving him exposed to the grave risks I am satisfied he faces in Somalia. M is clear in his account that his mother makes him attend “extremist religious lessons”, has made it clear that he is expected to attend a Madrasa in furtherance of the family’s Islamic religious beliefs and that his mother has threatened to place M in a facility for “Dhaqan Celis” alongside his brother if M chooses not to remain a devout follower of Islam. Further, there is prima facie evidence, as summarised above and again in the form of M’s account and exhibits, that his father is likely to take a hard line with respect to his apostacy.

Considering next the magnitude of the risk to M should his parents become aware of an order for his return has been made, again for the reasons set out above I am satisfied that there is strong prima facie evidence demonstrating that M’s Art 2 right to life and Art 3 right to freedom from torture or inhuman or degrading treatment are engaged and that there is a real risk that those rights will be breached, having regard to the potential harm consequent on his now revealed apostacy. The magnitude of the risk to M should his parents become aware of an order for his return has been made, and should they seek to frustrate that order, would thus be a real risk of severe and possibly fatal harm. As I have concluded, the evidence currently before the court demonstrates that M would not be protected by his mother, his wider family or by government agencies in Somalia from that real risk of severe and possibly fatal harm.

In this case, albeit after the fact, the parents will not be left without a remedy. The order can and will give liberty to the parents to apply to set aside the order once it is served upon them, permitting them to bring to the attention of the court those matters they assert mean that the return order was not required to protect M. Were the court to accede to those submissions, the parents could seek the return of M to the jurisdiction of Somalia.

Finally, whilst a return order made against the parents is necessary to protect M and to provide a legal basis for the return of M to this jurisdiction by compelling those with the authority to permit him to do so, this is a case in which M has, by virtue of his age and his ability to instruct a solicitor, been able to make his own arrangements for return without the assistance or co-operation of his parents. Further, I bear in mind that is not a case in which, pursuant to the return order, M will be removed from the jurisdiction in which he resides with his mother to a jurisdiction with which he has no family ties or relatives present. M’s father resides in this jurisdiction, as does his sister. M is a British citizen and lived in England for a significant part of his childhood.

In the foregoing circumstances, I am satisfied that the court should make a declaration that it is necessary for the protection of M for him to return to the jurisdiction of England and Wales and, in consequence, continue the return order made on 7 July 2025 but vary it to direct it at the parents. I am further satisfied that the grounds for proceeding without notice to the parents continue to be made out in this case. On the very particular facts of this case, and having regard to the difficulties highlighted above, I am further satisfied that in circumstances where M is living abroad with family members who are likely to frustrate the return order if they come to know of it, and where there is no other person or agency against whom the order can be properly made, the service of the return order on the parents should be withheld until such time as it has been implemented.

I accept that a number of objections might be advanced with respect to the course of action outlined in the foregoing paragraph, particularly with respect to the question of the enforceability of a return order that is not served upon the parents until after the child has left the mother’s care and the country of his habitual residence. However, on the very particular facts of this case, I am satisfied that those objections can be satisfactorily answered by the necessity of such an order to protect M from a real risk of serious or fatal physical harm that engages both his Art 2 and Art 3 rights.

For the reasons set out above, I am satisfied that it is appropriate in this case to continue the wardship and make a declaration that M is, as a British citizen, in need of protection of the High Court by reason of circumstances sufficiently compelling to render it necessary for the court to exercise its protective jurisdiction based on his nationality. Further, I am satisfied that the protective order that requires to be made is the continuation of the order requiring the return of M to the jurisdiction of England and Wales, subject to a variation to ensure that the order is directed against his parents. Finally, I am satisfied that these proceedings should continue without notice to the respondent parents and that, in consequence and exceptionally, the return order should not be served on them until such time as M has returned to the jurisdiction of England and Wales.

On 15 July 2025, M managed to reach the British Embassy Office in the secure zone in Mogadishu to collect his emergency travel documents. On 16 July 2025, he travelled to Mogadishu airport and boarded a plane using a ticket purchased through Mr Netto. M arrived in the UK, via Istanbul, on the same day and was met by a social worker who escorted him to local authority accommodation. The court has now made orders requiring service of the proceedings, and of the return order, on M’s parents.