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A v B (Port Alert) [2021] EWHC 1716 (Fam)

Mostyn J gives guidance on applications for free standing port alert orders in the Family Court.

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Proceedings

The case concerned Z, a 4 year old boy. His father (A), the applicant, is a British national; his mother (B) is a Slovakian national.  Z was subject to ongoing private law proceedings in the Family Court. Z was living with the father and had supervised contact with the mother.  The father held his passport. A 2019 prohibited steps order (PSO) prohibiting each parent from removing Z from the jurisdiction without the written consent of the other or an order remained in force. On 3 June 2021, the father applied to the High Court without notice for an order making Z a ward of court, a PSO preventing the mother withdrawing funds held in an account earmarked to pay Z's school fees, and a port alert. 

The matter came before Mostyn J for an inter partes hearing.  The father, a litigant in person, applied for wardship to prevent any steps being taken unilaterally by the mother in respect of Z's education or medical treatment.  These matters are within the power of the Family Court to regulate by the making of a PSO.  Wardship adds nothing to the statutory jurisdiction.  The application was dismissed. 

Pursuant to FPR 5.4, where the wardship application had to be issued and heard in the High Court, it was permissible for the father to tack on the application for a PSO. As the wardship application had been dismissed, it was not appropriate to deal with the PSO application.  There were no exceptional circumstances to  justify the case being heard in the High Court and it could easily be heard alongside the existing CA 1989 proceedings in the Family Court. Application dismissed. 

Father also sought a port alert.  The application was dismissed for two reasons: (i) it should have been made to the Family Court and not to the High Court; and (ii) because Mostyn J was not satisfied that there was a real and imminent risk that the mother was going to remove Z from the jurisdiction.

Freestanding Port Alert Orders and the Family Court

Mostyn J explored whether the Family Court has the power to issue a freestanding port alert order and analysed the relevant law and guidance. He makes the distinction between a freestanding port alert order and a Tipstaff Order. While a port alert order is made pursuant to the inherent power of the High Court, it is not an independent substantive form of relief. It is an incidental/supplemental measure to give effect to a substantive order by the court or to protect a substantive claim made to the court. It is of the same character as an interlocutory injunction or a bench warrant, which are made frequently in the Family and County Court.  

S.31(E)(1)(a) of the Matrimonial and Family Proceedings Act 1984, headed 'Family Court has High Court and County Court powers', provides that 'in any proceedings in the Family Court, the court may make any order… which could be made by the High Court if the proceedings were in the High Court'.  This is in the same terms as s.38(1) of the County Courts Act 1984.  This provision supplies remedies and orders that the court can make in proceedings properly before it. 

Mostyn J determined that the Family Court does have the power to issue a freestanding port alert order, where such an order is justified on the facts and is an incidental and supplemental order to give effect to a decision of the Family Court, e.g. where the court has made a PSO preventing a parent taking a child out of the jurisdiction.  A port alert in these circumstances is acting ensure the efficacy of the PSO.  It should only be made where the applicant demonstrates that there is a real and imminent risk that the child will be removed.  The applicant does not have to prove that it is more likely than not that the child will be removed. However, the court will expect proof of a degree of probability not far short of that standard. Applications should not be made in reliance on evidence which is flimsy or amounts to mere assertion.

The default position should be that a freestanding port alert order lasts for only 28 days in the first instance. Any extension should only be ordered on a subsequent inter partes hearing.  Mostyn J observed that this key provision needs to be adhered to strictly.

The initial application is likely to be made ex parte.  There should be a transparent and accessible facility to make an urgent ex parte application in each DFJ area.  Where possible, applications should be made to a hearing centre in the applicant's local DFJ area.  Mostyn J expects that local agreements would be reached so that adjacent DFJ areas combine to provide an urgent business rota.  Each DFJ may consider how to allocate such applications. Mostyn J expressed the view that such applications should be allocated to the circuit judge level, or, in a complex case, to a judge of High Court judge level.  

The heading of the existing pro forma template order is misleading as it refers to proceedings in the High Court. A pro forma order for use in the Family Court is appended to the judgment.

Case summary by Victoria Roberts, Barrister, Coram Chambers

For full case, please see BAILII