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Re H (Jurisdiction) [2016] EWHC 1252 (Fam)

Mother's application for an order requiring the father to give full information as to the whereabouts of their six-year-old child who is not habitually resident in this jurisdiction and has not been known to be present in the country at any stage.

The parents are both Afghan nationals and first cousins. The father came to the UK in 2000 and was granted British citizenship in 2007. He married the mother in 2009 in Afghanistan, where their six-year old son "Z" was born. When Z was four weeks old, the parents placed him in the care of a mutual uncle and returned to England. The mother had the parties' second child in December 2010 but by this time the parents' relationship had broken down. The father has not met their youngest child to date.

In February 2011, the mother issued a wardship application in relation to Z, seeking to have him brought to join them in England. The father responded saying that Z had disappeared from the uncle's home in January 2011 and that he did not now know Z's whereabouts. An order requiring the father to bring Z to England was granted, but this was overturned on appeal on the basis that the English court lacked jurisdiction, as Z is not habitually resident here.

Following the judgment of the Supreme Court in Re A (Jurisdiction: Return of Child) [2013] UKSC 60, the mother renewed her efforts to seek an order for Z to be brought to England. The matter eventually came before Newton J for a fact-finding hearing, when it was determined that the father had travelled to Afghanistan and removed Z from the care of the uncle in January 2011. A further finding was made that the father continues to be well aware of Z's whereabouts. The father denied, and still continues to deny, having any information relating to Z's location.

The mother invited the court to make a limited order requiring the father to give information about the child's whereabouts and about his general circumstances.

The parties agreed that the court had the power to grant the order sought by the mother. Peter Jackson J summarises the applicable principles to be drawn from Re A and Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 [paragraph 8 of his judgment], noting that the question for the court is whether the child requires protection.

The father submitted that the court should not grant the order for the following reasons:

• To do so would lead to the mother using the court's limited jurisdiction to seek further orders, which would be custodial rather than protective in nature;
• That any order granted would offend the principle of comity;
• That the mother could seek remedies in Afghanistan;
• That there was no evidence that Z was at risk of serious harm; and
• That there is no precedent for the exercise of the court's powers in the manner proposed by the mother.

The mother argued:

• The circumstances required to grant the order did not need to be extreme, drawing the court's attention to the factual background to Re A itself;
• She was merely requesting an order for the father to provide information, but even if she sought the return of Z it (per Baroness Hale in Re A) would not be a custodial order;
• There was no evidence of Z's whereabouts other than the information the father could provide;
• The English court was the appropriate forum: both parties are habitually resident here and have access to publicly funded lawyers; and
• It is in Z's best interests that his circumstances should be known.

Peter Jackson J granted the order sought by the mother for the following reasons:

• The order was necessary for Z's welfare and protection;
• By granting the mother's application, it did not necessarily follow that the court would subsequently grant every order that she sought;
• There was no lack of comity: no action had been taken in Afghanistan at all since at least 2011 nor was any action likely;
• The mother was unable to seek any remedies in Afghanistan as Z may no longer be present in the country; and
• The absence of a precedent cannot be a reason for the court's inaction.

The father was ordered to provide the information within 14 days.

Summary by Frances Harris, barrister, 1 King's Bench Walk
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IMPORTANT NOTICE
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 persons concerned 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.

Case No: FD14P01073
Neutral Citation Number:
[2016] EWHC 1252 (Fam)

IN THE FAMILY COURT

26 May 2016


Before :

THE HONOURABLE MR JUSTICE PETER JACKSON
Sitting at the Royal Courts of Justice

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Between :

HH
Applicant
-and-
SH Respondent

JUDGMENT:  Re H (Jurisdiction)
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Hassan Khan (instructed by Dawson Cornwell) for the Applicant
Paul Hepher (instructed by Jones Myers) for the Respondent

Hearing dates: 25 May 2016
Judgment date: 26 May 2016
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JUDGMENT
Mr Justice Peter Jackson:
1. In this matter, I have ordered a father to give full information about the whereabouts of a six-year-old child who is a British national but is not known to have been present in this country at any stage, let alone been habitually resident here. 

2. The circumstances are highly unusual.  The parents, who are first cousins, are both Afghan nationals.  The father came to this country in 2000 and has since 2007 been a British citizen.  In 2006, he and the mother were married in Afghanistan and in December 2009, their first child Z was born there.  Z is a dual Afghan/British citizen.  When he was four weeks old, he was placed by his parents in the care of their mutual uncle and at the same time they themselves came to England in disputed circumstances.  Once here, the mother again became pregnant, but the parents' relationship soon broke down and she left the father.  In December 2010, she gave birth to D, a girl who is now aged five.  The mother now has indefinite leave to remain in this country and the parents, who remain separated, have been habitually resident here since January 2010.  The father has never met D.

3. In February 2011, the mother began wardship proceedings in relation to Z, seeking to have him brought to England.  The father's response was that the child had disappeared from the uncle's home in January 2011 and that his whereabouts was unknown.  An order was made requiring the father to bring the child to England, but that order was overturned by the Court of Appeal in August 2011 on the basis that the English court lacked jurisdiction because Z was not habitually resident here.

4. In October 2013, the power of the High Court to make protective orders under its inherent jurisdiction on the basis of a child's British nationality was identified in the decision of the Supreme Court in Re A (Jurisdiction: Return of Child) [2013] UKSC 60.  Following that decision, the mother renewed her efforts to invoke the assistance of this court, though it was not until December 2014 that she obtained legal aid to do so.  A location order was made and in consequence the father's passport was seized.  In October 2015, the matter came before Newton J for a fact-finding hearing and in November 2015 he delivered a judgment in which he found that the father had travelled to Afghanistan and removed Z from the care of the uncle in January 2011.  He found that the father knows precisely where Z is to this day.  In reaching these conclusions, the judge accepted the evidence of the mother and the uncle and rejected the evidence of the father.  One salient feature of the evidence was that the father had in 2012 posted on his Facebook page a photograph of Z in which the child appeared to be 2½ years old.

5. Before Newton J, the father denied knowing anything about Z's whereabouts since January 2011.  He continues to maintain that stance despite the judge's findings.  Accordingly, this court as yet knows nothing about Z's circumstances beyond the fact that he was habitually resident in Afghanistan until the age of one, at which point he was removed from the care of the uncle by the father.  It is not known whether he remains in Afghanistan or whether he has been taken elsewhere, perhaps to one of the other countries to which members of the father's family have emigrated.  It is unknown to the court whether he is safe or not, or even whether he is alive.

6. Against that background, Mr Khan on behalf of the mother invited the Court to make a limited order requiring the father to give information about the child's whereabouts now and since 2011, and about his general circumstances.  That application was opposed by Mr Hepher for the father.

7. It is common ground that the court possesses the power to make the order sought by the mother.  The issue is whether it is appropriate to exercise that power in this case.

8. That question was considered by the Supreme Court in Re A and also by that court and the Court of Appeal in the later decision in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4.  Although the observations on the subject in those cases are largely incidental to the decisions themselves, they are nonetheless helpful and from them I gain this assistance:

(1) The court should be extremely circumspect in exercising powers on the basis of nationality alone, but all must depend upon the circumstances of the particular case: Re A, Baroness Hale at [65].

(2) The need for caution has three main reasons: avoiding a conflict of jurisdictions; avoiding a conflict of decisions; and avoiding the making of unenforceable orders: Re B, Baroness Hale and Lord Toulson at [59].

(3) However, the exercise of the inherent jurisdiction is not confined to extreme cases: Re B, Baroness Hale and Lord Toulson at [60].

(4) The question is whether the child requires protection: Re B, Baroness Hale and Lord Toulson at [60], Lord Wilson at [53].

9. Mr Hepher's submissions on behalf of the father are these:

(1) The court should not make even the limited orders sought by the mother because she is seeking to use the jurisdiction for custodial rather than protective purposes.  It is inevitable that she will seek to enforce any order that is not obeyed and that she will go on to seek broader orders. 

(2) To make any orders would offend the principle of comity.  The investigation of Z's situation is in the hands of the Afghan authorities and the court should not cut across those or seek to take over.

(3) The mother is at liberty to take proceedings in Afghanistan and the court should not judge the effectiveness of that remedy to be inadequate: Black LJ in Re B [53].

(4) The circumstances here are not of the extreme kind envisaged for the exercise of the jurisdiction: Black LJ in Re B [40].  There is no evidence of Z being at risk of serious harm.

(5) There is no precedent for the exercise of the court's powers in circumstances of the kind found in this case.

10. In response, Mr Khan submits:

(1) There is no requirement that the circumstances must be extreme.  In Re A itself, the justification for exercising jurisdiction was no more than that the child's three siblings were habitually resident in England and Wales while he was not.

(2) The mother is presently only seeking an order that the father should provide information.  But even if she were seeking an order that Z should be brought to England that would not be a custodial order: Re A, Baroness Hale at [28].

(3) There is no evidence, other than the father's word, of any police involvement in Afghanistan (at least not since 2011) and neither parent has taken any form of legal proceeding there.  In November 2015, the head of the CID in Kabul informed this court that the father's account of there having been a kidnap investigation was incorrect and that the documents that the father had provided to this court were not genuine.  (In fairness to the father, Newton J did not make any express finding about this.)

(4) The English court is the appropriate forum, given that both parents are habitually resident here and have the benefit of publicly funded lawyers.

(5) All international instruments are founded upon the best interests of the child.  It is in Z's best interests that his circumstances should be known.

11. After giving careful consideration to the question of principle raised by this application, I concluded that this is clearly a case in which it is appropriate for the court to exercise its protective powers.  My reasons are these:

(1) The order is necessary for Z's welfare and protection.  He is a British citizen whose whereabouts and circumstances are unknown to the court and to his mother.  Until that information is available, a high level of concern must exist about his welfare, if only because he has been separated from his mother against her will for almost the whole of his life.  The fact that there is no actual evidence of serious harm gives no reassurance as it is no more than the result of there being no evidence at all.  Even if it was a requirement that the jurisdiction can only be exercised in extreme circumstances (and in my view there is no such requirement), these circumstances are extreme.

(2) The court must approach matters in stages. I do not accept that by making any order the court must make every order that the mother seeks. The matter must be assessed as it develops. The considerations that might apply to an application for an order that Z should be brought to this country may be entirely different to those that apply to the present application.

(3) There is no lack of comity or potential for conflict in making such an order because, at least since 2011, there has been no police or legal activity in Afghanistan at all, and nor is any likely.

(4) The mother is in no position to seek remedies in Afghanistan without knowing Z's whereabouts, particularly as he may no longer be in that country.

(5) The solution to this deeply troubling situation lies in this country because it is here that the father resides.  It is only by this court exercising its powers that a remedy is likely to be available.

(6) The fact that there is no precedent for an order of this kind is a reflection of the highly unusual facts.  It cannot be a reason for inaction.

12. I have therefore directed the father to provide the required information within 14 days.  Once the information has been provided, the matter will be restored for further consideration.  If the order is not complied with, the mother will no doubt be advised concerning its enforcement.