username

password

Berkeley Lifford Hall Accountancy ServicesAlphabiolabsFamily Law Week Email Subscription

Home > Judgments

K v H [2021] EWHC 1918 (Fam)

On an application by the Mother under the inherent jurisdiction of the High Court to consider whether the court had jurisdiction to exercise its residual parens patriae in respect of the children in circumstances where B and E were habitually resident in Sudan, the court considered it did not and the application was dismissed.

___

Background

The full background to this matter is set out in the court's judgement at paragraphs.4-14. In summary, the parties married in Sudan on 3 June 2012. On 18 January 2014 the mother was given entry clearance to the United Kingdom on a spousal visa. The mother resided with the father at his home in London. In November 2014, B was born in the United Kingdom and E was born in March 2016 in the United Kingdom. Both children hold dual British-Sudanese citizenship.

On 25 April 2017 the mother and the children travelled to Sudan. In May 2017, the mother moved to live with her parents in Sudan. A dispute followed between the parties has to who was in possession of the children's passports. On the  30 May 2018, the father stated he was divorcing the mother. The mother sought confirmation of her divorce from the father on 9 September 2018, when she applied to the Sudanese court for an order evidencing the fact that she was divorced from the father. On 29 November 2018 the father applied in the jurisdiction of Sudan for a custody order, but was granted an order for weekly contact by the Al-Fasher Sharia Court. The dispute regarding the children's passports remained a live issue during throughout this time.

On the 29th January 2020, the mother returned to the UK, leaving the children in the care of her parents so as to report the father to the UK police with respect to alleged historic domestic abuse and withholding the children's passports. The father returned to Sudan in February 2020, returning to the United Kingdom in October 2020. The father made a further application in Sudan for a custody order with respect to the children on the grounds that they had been left by the mother in the care of the maternal grandparents. This was the father's second application that was again refused by the Sudanese court.

The mother remarried and had a baby daughter with her second husband. Her second husband is in Sudan and is awaiting entry clearance into the United Kingdom.

On 10 February 2021, nearly four years after the children went to Sudan, the mother issued a without notice wardship application in respect of the children in this court. The application form issued by the mother made no mention of the fact that the matters on which she relied in support of a without notice application had taken place as long ago as 2017. On 23 February 2021, Arbuthnot J made a passport order requiring the father to deliver up the passports of the children, and his passport, to the Tipstaff. The order was served on the father on 25 February 2021. The father denied that he was holding the children's passports. He was subsequently arrested with respect to allegations made by the mother of domestic abuse and currently holds the status of being released pending investigation.

Issues before the court

The matter came before Mr Damian Garrido QC sitting as a Deputy High Court Judge. It was accepted by the parties that the court retained a residual parens patriae jurisdiction based on the long standing acknowledgement that in this jurisdiction there remains a residual parens patriae jurisdiction of the High Court over a child who is a British citizen but who is outside the jurisdiction of England and Wales. The issues before the court therefore were:


i) Is this an appropriate case for the court to exercise its residual parens patriae jurisdiction based on the British nationality of the subject children?

ii) If so, should the children be made wards of court and a return order granted under the inherent jurisdiction in respect of the children?

iii) Should the passport order continue or be discharged?


The Law

The precise nature and extent of the residual parens patriae jurisdiction of the High Court over a child who is a British citizen, and the question of whether that jurisdiction should be exercised (which is the issue in this case) has been the subject of much detailed examination by the higher courts.

In considering the following authorities: Hope v Hope (1854) 4 De GM & G 328, Re A [2013] UKSC 60, Re B (A Child) [2016] UKSC 4 & Re M (A Child)(Exercise of Inherent Jurisdiction) [2021] 1 FLR 415, Mr Justice MacDonald considered that the following cardinal points of principle applied in determining whether the court should exercise its residual parens patriae jurisdiction based on the children's British Citizenship:


i) Subject to the terms of the Family Law Act 1986, the court retains a residual parens patriae jurisdiction in respect of a child who is a British Citizen, which is exercisable notwithstanding that the subject child is outside the jurisdiction of England and Wales.

ii) The residual parens patriae jurisdiction of the court is protective in nature.

iii) The threshold for exercising the residual protective jurisdiction of the court is substantive and requires more than simply whatever the court considers to be in the subject child's best interests.

iv) In order for the court to exercise its residual parens patriae jurisdiction there must exist circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction with respect to the subject child.

v) The need for caution when exercising the residual parens patriae jurisdiction of the High Court in respect of a child outside the jurisdiction of England and Wales is grounded in the well-recognised adverse consequences of the domestic court overreaching the jurisdiction of another State that has jurisdiction in respect of the child based on the primary connecting factors of habitual residence or physical presence.

Mr Justice Macdonald highlighted that the court did not have the benefit of a jointly instructed expert report on Sudanese law. However, Mr Macdonald gleaned in considering both parents letters from their Sudanese lawyers, that the following common propositions in respect to Sudanese law applied:


i) The Islamic Family Law of 1991 (also referred to as the Sudanese Personal Status Act 1991) accords the courts responsibility for looking after the benefit of the children.

ii) The custody of children does not automatically transfer to a Muslim father when the children reach the legal age prescribed by law. A father must file a suit and the court must be issued by the court before custody can be transferred upon the children reaching legal age.

iii) The Islamic Family Law of 1991 (also referred to as the Sudanese Personal Status Act 1991) provides that a court may accord the custody of the male child after the age of seven and the female child after the age of nine to the mother or to a woman if the court deems it to be in the best interests of the child.

iv) If the father were to be awarded custody this does not permit the father to leave the child in the care of another. If the father left the child with another person, or the residence of the father was different from the residence of the child, the court allows the mother or the maternal grandmother to seek the judgment of the court awarding custody.

v) Where the children are in the custody of the mother, the Islamic Family Law 1991 accords the father a right to see the children and the court may make an order to that effect stipulating the time he can spend with the children.

vi) Were the English court to determine that the children should return to their country of birth the Sudanese court would not seek to interfere as the court will not deny the child the ability to move with his or her custodian, the custodian mother being permitted to travel without permission.

Outcome

The court having regard to the evidence, considered that it was not appropriate for this court to exercise its residual parens patriae jurisdiction in respect of the children in circumstances where B and E were habitually resident in Sudan, where the convenient forum for determination of welfare issues is Sudan and where, in that context, the evidence demonstrates no sufficiently compelling reason that the children require the protection of this court. The Sudanese courts were already seised in respect of issues concerning the children's welfare and the convenient forum for the parents to litigate with respect to the children's welfare was the forum in which the children are now habitually resident and in which they have been litigating for nearly four years. The court could not identify any sufficiently compelling reason having regard to the evidence before the court that would justify this court assuming a protective jurisdiction in respect of the children based on their nationality.

53. The court also discharged the passport order in respect of the father as it considered there was no basis for that order to subsist in light of the dismissal of the mother's application.

Case summary by Yasmine El-Nazer, Barrister, Albion Chambers

For full case, please see BAILII