Re A (A Child) (Inherent Jurisdiction: Parens Patriae, FMPO and Passport Orders)
| Jurisdiction | England & Wales |
| Judge | Moradifar |
| Judgment Date | 27 February 2020 |
| Neutral Citation | [2020] EWHC 451 (Fam) |
| Date | 27 February 2020 |
| Docket Number | Case No: FD19P00339 & FD19F05033 |
| Court | Family Division |
[2020] EWHC 451 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Moradifar
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: FD19P00339 & FD19F05033
In the matter of:
Ruth Kirby (instructed by Dawson Cornwell Solicitors) for the mother
Cliona Papazian (instructed by Freemans Solicitors) for the father
Hearing dates: 30 and 31 January, 17 and 27 February 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ Moradifar
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
A is a twelve-year-old girl who is the subject of two primary applications by her mother. These are an application to invoke the court's inherent jurisdiction to make her a ward of the court to secure her return to the UK by exercising the court's parens patriae jurisdiction and for a Forced Marriage Protection Order (‘FMPO’). Ancillary to these applications, the mother invites the court to continue the existing Passport Orders against the father. A's father is the respondent to these applications and resists the applications on the basis that court's inherent jurisdiction is not engaged and the court has no jurisdiction to require the return of A to the UK. Furthermore, there is no evidence that would justify the making of a FMPO and that the existing orders retaining his passports should be set aside as the court's jurisdiction to make such an order was questionable and in any event an unnecessary interference with his liberty.
The law
The applications before the court are made by the mother. She must prove the facts that she seeks to rely on in support of her applications on the balance of probabilities. I am most grateful to counsel for the parties who have each provided me with detailed submissions on the relevant law. I will set out the relevant legal principle by reference to,
i. The court's Inherent Jurisdiction and parens patriae,
ii. FMPO, and
iii. Passport Orders
Inherent Jurisdiction and parens patriae
Waite LJ defined the court's Inherent Jurisdiction in Re M & N (Minors) [1990] 1 All ER 205 (at 537) as follows:
“ the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages.”
The Master of the Rolls Lord Donaldson MR in Re J (A Minor) (Wardship: Medical Treatment [1991] (Fam) 33 (41D) observed that;
‘The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests.
The Court, when exercising the parens patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents would be excluded from the decision making process. Nevertheless, in the end, responsibility for the decision, whether to give or withhold consent, is that of the Court alone’.
The former President of the Family Division, Munby P in Re M (Children) (Wardship: Jurisdiction and Powers) [2015] EWHC 1433 (Fam) stated that:
“32. This is not the occasion, and there is no need for me, to explore the range of circumstances in which it may be appropriate to make a child who is outside the jurisdiction a ward of court. I merely observe that cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world. I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage Articles 2 or 3 of the Convention – risk to life or risk of degrading or inhuman treatment – is surely unproblematic. So wardship is surely an appropriate remedy, even if the child has already left the jurisdiction, in cases where the fear is that a child has been taken abroad for the purposes of a forced marriage (as in Re KR and Re B) or so that she can be subjected to female genital mutilation or (as here) where the fear is that a child has been taken abroad to travel to a dangerous war-zone. There is no need for me to go any further, so I need not consider whether there are other kinds of situation where a child who is already abroad should be made a ward of court or whether wardship is an appropriate remedy where the risk to the child is of harm falling short of harm of the type that would engage Articles 2 or 3 of the Convention.
33. In the Tower Hamlets case, Hayden J recognised (para 11) that the relief he was being asked to grant arose in circumstances without recent precedent, but rightly saw that as no obstacle. He said (paras 57–58), and I entirely agree:
“57 The family court system, particularly the Family Division, is, and always has been, in my view, in the vanguard of change in life and society. Where there are changes in medicine or in technology or cultural change, so often they resonate first within the family. Here, the type of harm I have been asked to evaluate is a different facet of vulnerability for children than that which the courts have had to deal with in the past.
58 What, however, is clear is that the conventional safeguarding principles will still afford the best protection.”
34. For these reasons, I concluded, therefore, that I had jurisdiction to make the children wards of court, because they are British subjects, notwithstanding the fact that they were at the time out of the jurisdiction.
35. Having jurisdiction, it was plain that I must exercise it, for the children's future welfare demanded imperatively that I do so. And in exercising the jurisdiction, I sought to apply the well known words of Lord Eldon LC in Wellesley v Duke of Beaufort (1827) 2 Russ 1, at 18:
“it has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.” These words are as apposite today as they were over 180 years ago: see M v B, A and S (By the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117, para 108, and Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, para 103.”
Subsequently, in Re B (A Child) [2016] UKSC 4 the Supreme Court provided the most recent guidance on the parens patriae jurisdiction. Lady Hale and Lord Toulson at paragraphs 59 to 61 stated as follows:
“[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 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...
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