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Re M (a child) [2020] EWCA Civ 922

Appeal by father (F) against order made under inherent jurisdiction that a child (A) aged 13 and a British National, who has been living in Algeria for just over 12 years, should be brought to England so that “an assessment can be made in a place of safety as to her best interests and living arrangements”.

The judgment below is reported as Re A (a child) (Inherent jurisdiction: parens patriae, FMPO and passport orders) [2020] EWHC 451 (fam)

A had been taken to Algeria before her first birthday by both parents when the LA had been about to initiate proceedings.  A was made a ward of court but care proceedings were not pursued and the wardship order was discharged in 2009.  Mother (M) continued to live in England, while F returned to Algeria.  In June 2019 M commenced proceedings applying for a wardship order stating that A was wrongfully retained in Algeria, that she was concerned about her safety and wellbeing and wanted her returned to her (M's) care.  M had evidence of A's sibling complaining about his treatment, and recordings of F that suggested he encouraged physical chastisement and that he engendered fear in his children.

During proceedings, the Foreign and Commonwealth Office (FCO) where requested to arrange a visit to A.  The consulate reported that A looked well and seemed confident.  The report concluded that the FCO's social work adviser specialised in child safeguarding agreed with consular staff that there were no concerns raised about A's health or welfare.  Expert evidence was obtained on Algerian law which provided detail about protective measures available in Algeria in respect of children as well as welfare proceedings.

The Judge below decided to exercise the inherent jurisdiction on the basis that A had suffered significant harm in the care of her father (para 39).  The conclusion considered the 3 "objections" which were obiter observations regarding the use of the inherent jurisdiction in the case of Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606

The Court of appeal allowed the appeal and dismissed the proceedings. 

The judgment gives a detailed review of the statutory limitations placed on the exercise of the inherent jurisdiction by the Family Law Act 1986 (paras43-53), a detailed review of the case law, including A v A (A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2014] AC 1) (paras 54-63) and re B  including the appeal to the Supreme Court  (paras 64-83).  That final appeal determined by a majority that the child in re B had not lost her habitual residence in England and Wales at the relevant date, but the judgments addressed inherent jurisdiction which were acknowledged to be obiter observations given the decision on habitual residence.  The judgment therefore also considered how obiter comments in the Supreme Court impact on earlier binding precedents from the Court of Appeal (paras 90-92) particularly in the context of determining a test/ threshold for the exercise of the inherent jurisdiction.  The judgment carefully considers the threshold in relation to the exercise of the inherent jurisdiction based on nationality and concludes (paras 103-108) that the circumstances must be sufficiently compelling to require or necessitate the exercise of its protective jurisdiction (with "necessitate" having a similar meaning attributed by Lady Hale in Re B [2013] 1 WLR 1911  - "nothing else will do")

The Court determined that there was not sufficient analysis of the necessity for the use of the inherent jurisdiction, the court failing to give sufficient consideration to the availability of protective measures in Algeria, the evidence from the FCO, and the provisions of the 1986 Act.  The clear purpose of the order was to enable the English Court to undertake a welfare enquiry for the purpose of deciding who should care for A which was in effect using the inherent jurisdiction to circumvent the effect of the 1986 Act (s 2(3) prevents an order being made under s 1(1) d).  In the circumstances of this case that would subvert Parliament's intention (para 137).  Finally, there was insufficient basis to conclude that the court was required to act in accordance with A's welfare needs.

Summary by Martina van der Leij, barrister Field Court Chambers

You can read the full judgment of Re M (a child) [2020] EWCA Civ 922 on BAILII