Mr Justice MacDonald:
INTRODUCTION
- I have before me a without notice application by which the local authority seeks permission to invoke the inherent jurisdiction of the High Court and, thereafter, orders in wardship in respect of two children, K, born in December 2001 and now aged 15, and D, born in May 2003, and now aged 13, including orders for their summary return to the jurisdiction of England and Wales. The children are British Citizens.
- Both children are currently in Cyprus. Since the intervention of Turkish troops in 1974, the island of Cyprus has been effectively partitioned into a Greek Cypriot southern area and a Turkish Cypriot northern area. The Republic of Cyprus is recognised as a State in international law by the international community and although, de jure, it represents Cyprus as a whole, de facto it controls only the southern area of the island. In the northern area, the Turkish Republic of Northern Cyprus (hereafter "Northern Cyprus"), recognised only by Turkey, is in control. K is currently in a children's home in Northern Cyprus. D resides currently in a children's home in the Republic of Cyprus. Prior to the events which triggered these proceedings, both children had resided in Northern Cyprus since April 2012 and the local authority contends that both children are habitually resident in Northern Cyprus.
- The mother of the children is NR. For reasons that will become apparent, she has not been given notice of this application. She is currently in custody in the Republic of Cyprus, having been arrested pursuant to a European Arrest Warrant with respect to charges of child abduction. She is due to be returned to the United Kingdom in police custody on 23 January 2017, the Cypriot Supreme Court having denied her appeal against extradition. The children's father is RT. He has had no contact with the children for approximately 9 years. There is evidence before the court that the mother has caused the children to become estranged from their father. He is not seeking that the children be placed in his care at this time.
- In circumstances where the local authority contends that both children are habitually resident in Northern Cyprus and are currently outside the jurisdiction of England and Wales, the local authority seeks to invoke the inherent jurisdiction of the High Court based on the children's British nationality.
- At a hearing on Friday 20 January 2017 I decided to grant the orders sought by the local authority. I now set out in detail my reasons for doing so.
BACKGROUND
- The local authority has a long history of involvement with the family, dating back to 2004. The children were each subject to child protection plans between September 2007 and April 2008 under the category of neglect. The concerns centred on the mother's mental health. Between 2011 and 2012 there were protracted proceedings in relation to the contact and residence arrangements for the children. Within this context, the evidence currently before the court suggests that the mother had a long history of breaching non-molestation orders and probation orders.
- In April 2012 the mother took the children to Northern Cyprus. At the time the mother took the children to Northern Cyprus the children were the subject of child protection plans by reason of concerns regarding the mother's mental health, her alleged emotional abuse of the children and her lack of compliance with court orders. The mother contended that the trip to Cyprus was a temporary holiday. The local authority contends that the mother's departure to Northern Cyprus was part of an extreme effort to avoid the involvement of professionals with the family by taking the children to an area outside the province of the 1980 Hague Convention and the Brussels IIa regulation (hereafter BIIa).
- It is clear that, in any event, the mother failed to return to the jurisdiction of England and Wales and the children remained in the care of their mother in Northern Cyprus from 2012. Between 2014 and 2016 concerns regarding the mother's care of the children in Northern Cyprus were raised, including alleged physical abuse of the children by their mother and the expulsion of K from school. In August 2016 an assessment completed by authorities in Northern Cyprus found that the family home was dirty, with no flushing toilet and cat excrement covering the floor. As I have already outlined, the mother was arrested pursuant to the European Arrest Warrant on 12 November 2016 whilst in the Republic of Cyprus. The children were with her at the time of her arrest
- Following the mother's arrest, initially both K and D were placed in children's homes in the Republic of Cyprus. However, K thereafter absconded from his children's home in the Republic of Cyprus on 23 November 2016, allegedly on the instruction of his mother, and travelled back to Northern Cyprus where he was located on 24 November 2016. K stayed temporarily with a friend of the mother in Northern Cyprus before being placed in a children's home in Northern Cyprus when the placement with the family friend broke down on 9 December 2016. It is understood that the children's home in which he resides currently is not appropriate for K' age. The children are thus separated from their mother and each other. Further, there is no person in Cyprus who has parental responsibility for the children and no person currently able or willing to exercise parental responsibility for the children in either Cyprus or in England and Wales.
- Both the relevant authorities in Northern Cyprus and the relevant authorities in the Republic of Cyprus have now indicated in writing to the local authority that they will not be issuing proceedings in respect of the children and wish to facilitate their return to the jurisdiction of England and Wales following the arrest and extradition of the mother. In this regard, the court has before it an email from the authorities in Northern Cyprus dated 18 January 2017 stating that they cannot provide K with long term care in circumstances where he is not a citizen in their jurisdiction and that the authorities wish to cooperate in effecting his return to this jurisdiction. The email makes clear that the mechanism for returning K to England is likely to be one that first involves handing K over to the British High Commission in Nicosia, which handover will, in turn, require the authority of a return order from the High Court. The Court also has before it an email from the Ministry of Labour, Welfare and Social Insurance in the Republic of Cyprus dated 19 January 2017. That email again makes clear that the competent authorities in the Republic of Cyprus have no intention of issuing legal proceedings in respect of D and consider that she should be returned to the jurisdiction of England and Wales.
- In light of their respective ages, much work has been done to secure the wishes and feelings of K and D regarding a return to the jurisdiction of England and Wales. On 18 November 2016 the British Vice Consul visited the children. Both children asked about going to Northern Cyprus. After being told that this was not possible and having been allowed to talk to each other alone, D said they would rather to go to family in England, although K later questioned this. Both K and D confirmed that their mother had been telephoning them from prison and the Vice Consul reported "grave concerns" that the mother was manipulating the children and encouraging them to abscond to Northern Cyprus, as K subsequently did 5 days later on 23 November 2016.
- On 30 December 2016 the social worker spoke to D by telephone. D stated that she would prefer to be in Northern Cyprus but that if her mother was extradited then she would return to England and was accepting of the local authority plan to place her in foster care. The social worker spoke again with D on 17 January 2017. At this point, whilst still expressing a preference for being in Northern Cyprus she said that she was resigned to the fact that her only option was to return to England.
- The social worker spoke to K on 5 January 2017. K appeared to the social worker to be emotionally burdened by his situation. K stated that if his mother remained in Cyprus he would wish to remain there but, if she were extradited, he could see no other option than to return to England. The social worker spoke to K again on 18 January 2017. On this occasion it was very difficult to separate K' views from those of his mother as he was awaiting a phone call from his mother "to tell him what was next" for him. When encouraged to think independently K said "I think I have to go back [to England] as well".
- When the mother was interviewed by the British Vice Consul on 18 January 2017 she indicated to the Vice Consul that if the children were unable to remain in Cyprus she would wish them to return to England, with D to reside with her maternal grandfather and K to attend school. The maternal grandfather has indicated that he is not in a position to care for the children and the children's father accepts that he is not. The mother is not presently in a position to make an application for an order for the return of the children to the jurisdiction of England and Wales if she sought to. The father has not taken any steps to do so.
- Immediately prior to her departure to Northern Cyprus in 2012 the mother received a 20 week suspended sentence with 120 hours of unpaid work and a requirement of weekly probation supervision for another breach of a non-molestation order. The mother is accordingly in breach of her suspended sentence and a warrant without limit of time has been issued for her arrest. That warrant will be executed immediately upon her being returned to this jurisdiction, meaning that it is likely she will remain in custody upon her return to England.
- It is the intention of the local authority to issue care proceedings in respect of each of the children immediately upon their arrival in this jurisdiction.
LAW
The 1980 Hague Convention and BIIa
- As Mostyn J recognised in Leicester City Council v Chhatbar [2014] EWHC 830 (Fam) at [5]:
"As is well known, the Turkish Republic of Northern Cyprus is recognised as an independent state only by Turkey. The rest of the world, and specifically the European Union, regard the Turkish Republic of Northern Cyprus as being a military occupation by Turkey of part of the Cypriot Republic. The Turkish Republic of Northern Cyprus is not a signatory to the 1980 Hague Convention on the Civil Effects of Child Abduction, nor does it subscribe to or apply the child abduction provisions of the Brussels II regulation."
- The Republic of Cyprus is a signatory to the 1980 Hague Convention. The Republic of Cyprus is also a party to BIIa by virtue of its accession to the European Union in 2004. In this context I pause to note however, that whilst the Republic of Cyprus acceded to the European Union in 2004, this did not act to apply the provisions of BIIa to Northern Cyprus. As noted above, although, de jure, the Republic of Cyprus represents Cyprus as a whole, de facto it controls only the southern area of the island. Within this context, the application of the acquis communautaire (the accumulated legislation, legal acts, and court decisions which constitute the body of European Union law) to the areas of the island over which the Republic of Cyprus does not exercise sovereign jurisdiction was suspended by a separate Protocol to the Treaty of Accession (see Art 1.1 of Protocol No 10 on Cyprus annexed to the Act of Accession of 2003).
The Inherent Jurisdiction
- Whilst s 2(3) of the Family Law Act 1986 circumscribes the operation of the inherent jurisdiction in relation to orders giving care of the child to any person, providing for contact with a child or providing for the education of a child pursuant to ss 1(1)(d) and 2(3)(b)(i) and (ii), the 1986 Act does not proscribe the making of other orders under the court's inherent jurisdiction with respect to children, including wardship, provided the jurisdictional foundation for making such orders exists (A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening [2013] UKSC 60 and Re B (A Child) [2016] UKSC 4). That jurisdictional foundation can be either habitual residence in England and Wales, presence in England and Wales or, more unusually, British citizenship.
- Habitual residence is a question of fact to be determined by reference to all the circumstances of the case. In Re A (Jurisdiction: Return of Child) at [54] Baroness Hale observed as follows in respect of the test to be applied when determining habitual residence in proceedings engaging the 1986 Act:
i) Habitual residence is a question of fact and not a legal concept;
ii) It is the purpose of the 1986 Act to adopt a concept which is the same as that adopted in the Hague and European Conventions;
iii) The test adopted by the European court is 'the place which reflects some degree of integration by the child in a social and family environment' in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question;
iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention;
v) The test adopted by the European court is preferable to that earlier adopted by the English courts, being focused on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors;
vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned;
vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
- Whether the child has achieved a degree of integration with the social and family environment in a country sufficient to establish habitual residence will depend on both largely objective factors (including the quality and duration of the residence, the nature and stability of the living conditions, the child's nationality, the child's linguistic knowledge and the child's schooling and education) and more subjective factors (including the quality of family and social relationships, the child's perception of the circumstances and his or her state of mind). In evaluating the question of habitual residence as a matter of fact, it is important to maintain the child at the centre of the exercise (see Re B (Minor)(Habitual Residence) [2016] EWHC 2174 (Fam) at [17]-[18]).
- In determining the issue of habitual residence the court does not need to undertake a searching and microscopic enquiry but rather should stand back and take a general, panoramic view of the evidence (Re B (Minors)(Abduction)(No 1) [1993] 1 FLR 988). There is no need to identify a specific point in time at which a child ceases to be habitually resident in one jurisdiction and becomes habitually resident in another because the loss of one habitual residence and the acquisition of another is a gradual process (Re A (Removal Outside Jurisdiction: Habitual Residence) [2011] 1 FLR 2025).
- As was made clear by the Supreme Court in Re A (Jurisdiction: Return of Child) at [54], it is possible for a child not to be habitually residence anywhere at a particular point in time in circumstances where the child has lost his or her habitual residence in one jurisdiction but has not yet gained habitual residence in another. However, in Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] 2 WLR 557 a majority of the Supreme Court concluded it is highly unlikely, albeit conceivable, that a child will not have a habitual residence, the concept operating in the expectation that, when a child gains a new habitual residence he or she loses the old one.
- Finally, in respect of the question of habitual residence, Art 10 of BIIa provides as follows with respect to the question of habitual residence in cases of child abduction:
"Article 10
Jurisdiction in cases of child abduction
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention."
- In Re H (Jurisdiction) [2015] 1 FLR 1132 the Court of Appeal considered the proper interpretation of Art 10, which provides a scheme for retention of jurisdiction in the Member State from which the child has been abducted, but also includes provision for the retained jurisdiction to come to an end where the child has acquired a new habitual residence in another Member State and certain other conditions are satisfied. In Re H the Court of Appeal concluded that that part of Art 10 which governs the circumstances in which jurisdiction is lost by the Member State from which the child has been abducted must be read as applying only to another EU Member State. In the circumstances, the retained jurisdiction is not brought to an end where a child's new habitual residence is in a non-Member State, even though the jurisdictional scheme in BIIa is not geographically limited to the EU.
- With respect to jurisdiction based on a child's nationality, the existence of the parens patriae jurisdiction of the High Court over a child who is a British citizen was reiterated in Re P(GE)(An Infant) [1965] Ch 568, in which Lord Denning observed:
"The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see Hope v Hope (1854) 4 De GM & G 328; In Re Willoughby (1885) 30 Ch D 324; R v Sandbach Justices, ex p Smith [1951] 1 KB 62."
- The nature and extent of the inherent jurisdiction based on nationality has been considered in two recent decisions by the Supreme Court. That there is such a jurisdiction was made clear by the Supreme Court in the case of A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60. In that case Baroness Hale of Richmond observed thus:
"[60] We have already established that the prohibition in section 2 of the 1986 Act does not apply to the orders made in this case. The common law rules as to the inherent jurisdiction of the High Court continue to apply. There is no doubt that this jurisdiction can be exercised if the child is a British national. The original basis of the jurisdiction was that the child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was."
- The Court of Appeal examined in more detail the circumstances in which the jurisdiction might be exercised in Re B (A Child) (Habitual Residence) (Inherent Jurisdiction) [2015] EWCA Civ 886). At paragraph 45 and 46 of her judgment in Re B Black LJ stated as follows:
"[45] In our judgment, the use of the inherent jurisdiction in cases where the child is outside the jurisdiction remains subject to the long established and consistent jurisprudence. Various words have been used down the years to describe the kind of circumstances in which it may be appropriate to make an order – "only under extraordinary circumstances", "the rarest possible thing", "very unusual", "really exceptional", "dire and exceptional", "at the very extreme end of the spectrum." The jurisdiction, it has been said, must be exercised "sparingly", with "great caution" (the phrase used by Lord Hughes JSC in A v A, § 70(v)) and with "extreme circumspection." We quote these words not because they or any of them are definitive – they are not – but because, taken together, they indicate very clearly just how limited the occasions will be when there can properly be recourse to the jurisdiction.
[46] Moreover, and as we have already explained, those occasions will in modern times be even more limited than previously, given, first, the effect of the 1986 Act and, secondly, the other recent developments noted by Thorpe LJ and Baroness Hale. The importance of the 1986 Act in limiting recourse to the inherent jurisdiction is plain. In our judgment, the analysis of Ward J in F v S (Wardship: Jurisdiction) [1991] 2 FLR 349, and his warning against using a return order as an artificial device to found jurisdiction, are as valid now as then, and remain unaffected by anything said in A v A."
- In the foregoing context Black LJ held in Re B that the absence of a remedy was not sufficient to justify intervention of the English court on the jurisdictional basis of the child's nationality in circumstances where the child was not habitually resident in England. In that regard Black LJ said as follows at paragraphs 52 and 53:
"[52] Overall, unsatisfactorily general though the evidence is, we are prepared to proceed on the basis that it is very unlikely that the courts in Pakistan would be prepared to recognise the appellant as having any relationship with P that would entitle her to relief. She could hardly hope to demonstrate the necessary kind of parental, or in any event familial, relationship with P unless she were tolerably frank about the nature of her relationship with the respondent. But in that case, even if the Court evinced no actual hostility to the appellant, the evidence about societal attitudes strongly suggests that her consequent relationship with P would not be recognised as one which justified any legal protection. Thus, while we need reach no conclusion about the alleged "risks to all concerned", what matters is that the appellant will have no realistic opportunity to advance her claim in the Pakistani courts.
[53] However, in our judgment that state of affairs is not by itself enough to justify the intervention of the English court. The fact that local judicial processes are, to our perception, inadequate does not in any way lessen the difficulties about seeking to invoke the inherent jurisdiction when a child is abroad. As a matter of principle, such a claim to jurisdiction sits most uncomfortably not merely with the long-established jurisprudence but more particularly with the provisions of section 1(1)(d)(i) of the 1986 Act and the decisions in Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951, and Re N (Abduction: Appeal) [2012] EWCA Civ 1086, [2013] 1 FLR 457. We would not wish to lay down any rigid boundaries for the exercise of the jurisdiction; all must depend, as always, on the circumstances of the particular case. However, we are satisfied that the present case does not approach the very high threshold necessary to justify the exercise of the jurisdiction. We are very willing to accept that the attenuation or even – if this is, regrettably, what happens – the ultimate loss of her relationship with the appellant will be a real detriment to P, quite apart from being a great grief to the appellant herself. But it has to be recognised that the respondent has always been P's primary carer, that the appellant had not been part of the household for some time before P and the respondent left for Pakistan and that the appellant has never even in this country had any legal parental rights. The situation falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction."
- The Supreme Court allowed the appeal against the decision of the Court of Appeal in Re B. Whilst in Re B (A Child) [2016] UKSC 4 the Supreme Court was not required to address the question of the circumstances in which the inherent jurisdiction based on nationality can be exercised given its conclusions as to habitual residence, the court made a number of observations in that regard. Lord Wilson said at [53]:
"This court has received extensive submissions from both of the central parties and from each of the three interveners about the proper exercise of the court's power - or indeed the discharge of its alleged duty - to exercise its inherent jurisdiction where no other jurisdiction exists in which the welfare of a British child can be addressed. With apologies to the solicitors and counsel who, all unremunerated, have laboured to craft them, I decline to lengthen this judgment by addressing almost all of these submissions. I do, however, agree with Lady Hale and Lord Toulson when, in para 60 below, they reject the suggestion that the nationality-based jurisdiction falls for exercise only in cases "at the extreme end of the spectrum". I consider that, by asking, analogously, whether the circumstances were sufficiently "dire and exceptional" to justify exercise of the jurisdiction, Hogg J may have distracted herself from addressing the three main reasons for the court's usual inhibition about exercising it."
- Baroness Hale and Lord Toulson observed at [59] - [62]:
"[59] Lord Wilson has listed a number of important issues to which that question would have given rise and which must wait for another day. It is, however, one thing to approach the use of the jurisdiction with great caution or circumspection. It is another thing to conclude that the circumstances justifying its use must always be "dire and exceptional" or "at the very extreme end of the spectrum". There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders. It is, to say the least, arguable that none of those objections has much force in this case: there is no applicable treaty between the UK and Pakistan; it is highly unlikely that the courts in Pakistan would entertain an application from the appellant; and it is possible that there are steps which an English court could take to persuade the respondent to obey the order.
[60] The basis of the jurisdiction, as was pointed out by Pearson LJ in In re P (GE) (An Infant) [1965] Ch 568, at 587, is that "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". The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to "cases which are at the extreme end of the spectrum", per McFarlane LJ in In re N (Abduction: Appeal) [2012] EWCA Civ 1086; [2013] 1 FLR 457, para 29. The judgment was ex tempore and it was not necessary to lay down a rule of general application, if indeed that was intended. It may be that McFarlane LJ did not so intend, because he did not attempt to define what he meant or to explain why an inherent jurisdiction to protect a child's welfare should be confined to extreme cases. The judge observed that "niceties as to quite where the existing extremity of the jurisdiction under the inherent jurisdiction may be do not come into the equation in this case" (para 31).
[61] There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality based inherent jurisdiction may run counter to the concept of comity, using that expression in the sense described by US Supreme Court Justice Breyer in his book The Court and the World (2015), pp 91- 92:
"… the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of 'comity' has assumed an expansive meaning. 'Comity' once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one another's toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives."
[62] If a child has a habitual residence, questions of jurisdiction are governed by the framework of international and domestic law described by Lord Wilson in paras 27 to 29. Conversely, Lord Wilson has identified the problems which would arise in this case if B had no habitual residence. The very object of the international framework is to protect the best interests of the child, as the CJEU stressed in Mercredi. Considerations of comity cannot be divorced from that objective. If the court were to consider that the exercise of its inherent jurisdiction were necessary to avoid B's welfare being beyond all judicial oversight (to adopt Lord Wilson's expression in para 26), we do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity."
- Lord Sumption, with whom Lord Clarke agreed, stated in a dissenting judgment at [81] to [87] that:
"[81] The inherent jurisdiction of the High Court with respect to children originated in an age where the civil courts had no statutory family jurisdiction. It is based on the concept of a quasi-parental relationship between the sovereign and a child of British nationality. It enables the courts to make a British child a ward of court, even if the child is outside the jurisdiction when the order is made. The continued existence of an inherent jurisdiction in an age of detailed and comprehensive statutory provision is something of an anomaly. The basis of the jurisdiction is, moreover, difficult to reconcile with the content of the statutory rules about jurisdiction. It is based on nationality, whereas the statutory rules are based on habitual residence and presence. Nonetheless, its survival was implicitly recognised by sections 1(1)(d) and 2(3) of the Family Law Act 1986, which prohibited the exercise of the jurisdiction so as to give care of a child to any person or provide for contact with or the education of a child, unless either the court had jurisdiction under the Council Regulation or the 1996 Hague Convention or, if neither of these applied, the child is present or habitually resident in the United Kingdom. Its survival in other cases was acknowledged by this court in A v A, supra, subject to the proviso that its exercise would call for "extreme circumspection" (paras 63, 65). The case-law, which fully bears out that proviso, is summarised in the judgment of the Court of Appeal, and I will not repeat that exercise here.
[82] The appellant in the present case invites the court, on the footing that there is no statutory jurisdiction, to use its inherent jurisdiction to order the return of the child to the United Kingdom. Such orders have been made in two classes of case, both of which can broadly be described as protective. The first comprises abduction cases before the enactment of a statutory jurisdiction to deal with them. The second comprises cases where the child is in need of protection against some personal danger, for example where she has been removed for the purpose of undergoing a forced marriage or female genital mutilation. All of the modern cases fall into this last category.
[83] A dissenting judgment is not the place for a detailed examination of the ambit of the inherent jurisdiction. Nor is such an examination required in order to determine this appeal. For present purposes, it is enough to make three points.
[84] First, the jurisdiction is discretionary, and should not be overturned in the absence of some error of principle or misunderstanding of the facts, unless the judge has reached a conclusion that no judge could reasonably have reached. The judge declined to exercise the jurisdiction because the appellant had been entitled to exercise her parental rights by taking the child to Pakistan and there was no reason to regard the child as being in danger there. In those circumstances, the admitted detriment to the child in being deprived of face to face contact with the appellant could not justify requiring the respondent to bring the child back. The Court of Appeal reached the same conclusion for substantially the same reason. The situation, they said (para 53), "falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction". I agree with this, but on any view I think that it was a view that a judge could reasonably take.
[85] Secondly, the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme. If, as Lady Hale and Lord Toulson suggest, the use of the inherent jurisdiction is not reserved for exceptional cases, the potential for it to cut across the statutory scheme is very considerable… I do not accept that the inherent jurisdiction can be used to circumvent principled limitations which Parliament has placed upon the jurisdiction of the court. For these reasons, in addition to those given by the judge and the Court of Appeal, I do not think that an order for the child's return could be a proper exercise of the court's powers.
[86] Third, if there were grounds for believing the child to be in danger, or some other extreme facts justifying the exercise of the inherent jurisdiction, it would no doubt be possible in the exercise of the court's inherent jurisdiction to direct an independent assessment of the situation of the child in Pakistan. Unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country…
[87] Given that the inherent jurisdiction exists to enable the English court to exercise the sovereign's protective role in relation to children, from what is it said that B needs to be protected? As I understand it, the suggestion is that she needs to be protected from the presumed unwillingness of the courts of Pakistan to recognise the status of the appellant in relation to the child in the way that the English court would now do if they had statutory jurisdiction. I cannot regard this as a peril from which the courts should "rescue" the child by the exercise of what is on any view an exceptional and exorbitant jurisdiction."
- It can be seen that whilst the existence of the inherent jurisdiction based on nationality is in no doubt, the test for exercising the jurisdiction does not yet appear to be conclusively settled. It is however, in my judgment, clear that the court is able, albeit with great caution and circumspection, to exercise its inherent jurisdiction in respect of a British child who is outside the jurisdiction based on the nationality of that child where the court is satisfied on the evidence before it that that child requires the protection of this court.
- Finally, as to the legal principles governing the determination of this application, as I have noted, this application is made without notice to the mother. The President reiterated in Re A (A Child) [2016] EWCA Civ 572 the following cardinal principles applicable to all applications which are sought to be made without notice:
(i) Precisely the same principles governing without notice applications apply in the Family Court and the Family Division as in the County Court and the other Divisions of the High Court;
(ii) The principle that a without notice application will normally be appropriate only if the case is genuinely one of emergency or other great urgency or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on is of general, indeed universal, application, including in cases of child abduction;
(iii) Where it is said that the justification for proceeding without notice is that there is a compelling reason to believe that the child's welfare will be compromised if notice is given, what requires to be shown, usually by way of a proper evidential foundation, is a real risk that, if the respondent is alerted to what is proposed the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice;
(iv) In every child abduction case there must be particularised evidence sufficient to make good the argument that the relief claimed should be granted without notice. What is required is a careful analysis, based on solid evidence, of exactly what the risks are in the particular case and what level of protection is required in order to manage those risks;
(v) Good practice, fairness and common sense demand that the applicant provide the court with: a balanced, fair and particularised account of the events leading up to the application, including a brief account of what the applicant thinks the respondent's case is, or is likely to be; where available and appropriate, independent evidence; and a clear and particularised explanation of the reasons why the application is made without notice;
(vi) Given the diversity of modern forms of virtually instantaneous communication, it will be an unusual case where it is impossible to give any notice, however informal. Within this context, cases in which great urgency justifies proceeding without any notice at all will be comparatively rare. Some notice, however informal, is better than none, even if formal notice in accordance with the court's rules is not possible.
DISCUSSION
- Pursuant to s 100(3) of the Children Act 1989 no application for any exercise of the court's inherent jurisdiction may be made by a local authority unless the local authority has obtained the permission of the court. Being satisfied that the relief sought by the local authority in this case does not contravene s 100(2) of the Children Act 1989 and that the criteria for granting leave to the local authority to make an application under the inherent jurisdiction set out in s 100(4) of the Act are met, I granted permission for the local authority to make an application for relief under the inherent jurisdiction of the High Court in respect of the children.
Proceeding Without Notice
- I am satisfied in this case that it is appropriate to proceed without notice to the mother. I am further satisfied that the court has jurisdiction in respect of both children based on their being British citizens and that the court should exercise that jurisdiction to make the children wards of court and order that the mother cause the children to return to the jurisdiction of England and Wales by co-operating with the local authority to achieve that end. My reasons for so deciding are as follows.
- With respect to proceeding without notice to the mother, I am satisfied that there is clear evidence in this case that to give the mother notice of the application would result in a significant risk that the mother will seek to frustrate the orders of the court by persuading the children to abscond ahead of the orders being implemented.
- In particular, the evidence before the court discloses a very long history of the mother seeking to frustrate orders of court. Whilst I bear in mind that I have not heard the mother's side of the story, on the face of it that evidence points strongly to a risk of the mother seeking to frustrate orders this court makes to secure the return of the children. Specifically, and again accepting that it is yet to be tested, there cogent is evidence in form of an account from the British Vice Consul in the Republic of Cyprus of her "grave concerns" that the mother was seeking to manipulate the children and encouraging them to abscond to Northern Cyprus, as we know K did subsequent to the Vice Consul expressing those concerns. The court also has the evidence of the social worker evidence that K in particular is strongly influenced in respect of his actions by what his mother says.
- In these circumstances, I am entirely satisfied that the court is justified in proceeding without notice to the mother to meet what I am satisfied is an otherwise significant risk of her seeking to frustrate the steps taken by the court to protect the children's welfare, in particular by encouraging the children to abscond from their current placements.
Jurisdiction
- With respect to jurisdiction, I am satisfied that on the evidence currently before it, the court has jurisdiction to make orders under the inherent jurisdiction. On the evidence currently before the court it is in my judgment eminently arguable that the basis for that jurisdiction can be said to be the continued habitual residence of both children in England and Wales. However, and in circumstances where the court must be circumspect when dealing with the question of habitual residence at a without notice hearing, I am in any event satisfied that this court has jurisdiction under the inherent jurisdiction based on the nationality of the children and that, in the very particular and unusual circumstances of this case, it is appropriate to exercise the court's inherent jurisdiction on that basis.
- On the question of habitual residence, at the time the children were removed from the jurisdiction of England and Wales in 2012 the evidence currently before the court suggests that they were habitually resident in this jurisdiction for the purposes of Art 8 of BIIa. The evidence currently available to the court also suggests that the removal of the children from the jurisdiction of England and Wales to Northern Cyprus by the mother amounted to a wrongful removal for the purposes of Art 10 of BIIa. Further, on the evidence currently before the court, that wrongful removal was, for present purposes, to a non-Member State in circumstances where the application of the acquis communautaire to the areas of the island over which the Republic of Cyprus does not exercise sovereign jurisdiction is suspended by Art 1.1 of Protocol No 10 on Cyprus annexed to the Act of Accession of 2003. Finally, and within this context, the habitual residence that, on the evidence before the court, both children appear to have established in Northern Cyprus subsequent to their removal from the jurisdiction in England and Wales in 2012 is thus, for present purposes, habitual residence in a non-Member State. Accordingly, and having regard to the interpretation placed on Art 10 by the Court of Appeal in Re H (Jurisdiction), on the evidence currently before the court it is arguable that the basis for the court's jurisdiction in this case can be said to be the continued habitual residence of both children in England and Wales, they not having acquired habitual residence in another Member State for the purposes of Art 10 of BIIa.
- All that said however, I am conscious of the principle that, for reasons that will be self-evident, the court must avoid reaching definitive conclusions as to habitual residence at a hearing that is proceeding without notice to the other party and before all parties have had a proper opportunity to adduce evidence and make submissions on that question of fact (see Re F (A Child) [2014] EWCA Civ 789 at [12]). Further, whilst in Re F at [12] the Court of Appeal allowed for interim declarations as to habitual residence where necessary, it seems to me that the court should be cautious when considering an interim declaration before all parties have had a proper opportunity to adduce evidence and make submission in cases where what is sought from the court on the basis of any such interim declaration is an order for the summary return of a child to this jurisdiction. These points apply with particular force in this case in circumstances where it is apparent on the face of the papers that there is a significant lack of clarity, and much dispute, with respect to the children's whereabouts and circumstances since their removal from this jurisdiction in 2012.
- Having regard to these cautionary points, and in circumstances where I am satisfied that, in the very particular and unusual circumstances of this case, this court in any event has jurisdiction under the inherent jurisdiction based on the nationality of the children and that it is appropriate to proceed to exercise that jurisdiction, I am satisfied that it is not necessary for me to reach any interim conclusions as to habitual residence at this point in the proceedings notwithstanding the points set out above and to proceed on the jurisdictional basis argued for by the local authority. There is no dispute that both children are British citizens.
Exercise of Jurisdiction
- With respect to the exercise of the court's inherent jurisdiction based on the children's nationality, as to their current situation the children are accommodated in children's homes in Northern Cyprus and the Republic of Cyprus respectively. They are accordingly separated from each other. There is no one in either area with parental responsibility for the children and neither parent is at present in a position to exercise parental responsibility for the children (the mother because she is in custody and the father because he is estranged from the children). The authorities in Northern Cyprus and in the Republic of Cyprus have each indicated that they are not in a position to take further protective measures in respect of the children or to provide services to them in the long term and wish the children to be returned to England.
- Within this context, if this court does not exercise its jurisdiction to make orders for the summary return of D she will remain in a children's home in the Republic of Cyprus without anyone in that jurisdiction to exercise parental responsibility for her in circumstances where she would be in administrative limbo and without access to services required to protect her welfare. If this court does not exercise its jurisdiction to make orders for the summary return of K, he will remain in a children's home in Northern Cyprus that is understood not to be suitable for his age and in circumstances where he does not speak Turkish. Again, given the communication received from the responsible agencies in Northern Cyprus, he would be in administrative limbo and without access to services required to protect his welfare. I also note that neither child would be in a position to have direct contact with their mother pending the resolution of the criminal proceedings she faces on return to this jurisdiction and that indirect contact would be problematic. Neither child would have a full opportunity to see whether a reconciliation could be effected with the father. Finally, in circumstances where the children will have to be returned to the jurisdiction by social workers rather than those with parental responsibility, I am satisfied that making the children wards of court and making return orders under the inherent jurisdiction will serve to facilitate the lawful transit of the children from their current locations outside the jurisdiction into the jurisdiction of England and Wales.
- Within the foregoing context, I am satisfied on the evidence before the court that the children require the protection of this court. I am further satisfied that the appropriate means of conferring that protection on the children is to ensure that both children are returned to the jurisdiction where both parents now are and in which jurisdiction steps can be taken by the local authority to ensure their future welfare with the full involvement of those with parental responsibility for the children. Within this context, I am satisfied that it is in each child's best interests to make orders under the inherent jurisdiction to secure their return to the jurisdiction of England and Wales forthwith.
- I have also borne in mind that both children are of an age where their respective wishes and feelings should be listened to. Within that context, and notwithstanding strong prima facie evidence that the children are heavily influenced by their mother, in considering whether and how to exercise the court's inherent jurisdiction I have also had regard to the fact that both children, albeit reluctantly, have accepted that a return to England following their mother's extradition is in their interests given their current circumstances.
- Finally, I am satisfied that the exercise by the court of its inherent jurisdiction in this case based on the children's nationality does not to cut across the statutory limitations placed on the exercise of the court's inherent jurisdiction. The orders that the court intends to make pursuant its inherent jurisdiction based on the children's British nationality are purely protective in nature and do seek to prescribe matters concerning the care of the children or contact with them or to make provision for their education.
CONCLUSION
- The court will always be cautious before it accedes to a without notice application for an order for summary return pursuant to the court's inherent jurisdiction. This is not least because to do so will necessarily involve the court having either to reach an interim conclusion on the question of habitual residence as a precursor to making a return order (with the attendant difficulties inherent in basing the summary return of a child on a provisional view as to jurisdiction) or to exercise its jurisdiction based on the child's nationality, which jurisdiction the Supreme Court has made tolerably clear is only to be exercised with great caution or circumspection for the protection of the child. In the circumstances, the court will not routinely grant without notice applications under the inherent jurisdiction for the summary return of a child to the jurisdiction.
- Each case however, turns on its own facts. There will be cases where it is appropriate for such an order to be made. For the reasons I have set out in this judgment I am satisfied that this is one of those cases. Accordingly, I grant permission to the local authority to invoke the inherent jurisdiction of the High Court. Further, I make each of the children wards of court and order that the mother shall immediately co-operate with all relevant agencies to facilitate the return by the local authority of each child to the jurisdiction of England and Wales forthwith. I will make directions for this matter to return to court for an on notice hearing at on a date very shortly after the respective dates on which it is anticipated that the mother and the children will arrive back in this jurisdiction.
- That is my judgment.
