Family Law Hub

Inherent Jurisdiction

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  • An application was brought for return orders from Saudi Arabia under the inherent jurisdiction of the High Court. The central factual issue was the question of abandonment, and the alleged stranding of the mother and the children in Saudi Arabia. The mother's case was that she wished to return to the United Kingdom but was unable to, and that the father had engineered this situation. The father said that the mother had settled in Saudi Arabia. She also made allegations of domestic abuse, which HHJ Mark Rogers found to be credible. He also found that the husband's departure from Saudi Arabia, taking the family's passports, was a response to the family breakdown and his desire to isolate his wife and weaken her position. She was stranded in Saudi Arabia, against her will, in circumstances brought about in part, if not in whole, by the father. The children were not in full-time education, and had no access to proper healthcare, and the judge came to the conclusion that they were not habitually resident in Saudi Arabia. The children were British and he was satisfied they required the court's protection and that subsequent matters should be dealt with here. Orders would be required to secure the return of the children to the United Kingdom. Judgment, 22/09/2021, free
  • Both parents lived in England. The mother had taken their three-year-old daughter to India in March 2019, and returned without her, leaving the child with the maternal grandparents. Though born in England, the daughter was not yet a British citizen. In April 2021, the father had applied under the inherent jurisdiction for a wardship order and a return order. This hearing was to determine whether the court had jurisdiction (including the question of habitual residence), and whether the father's delay in issuing proceedings was fatal to his application. Peel J concluded that the child had continued to be habitually resident in England and Wales and had been so at the date of the father's application. He noted that the mother had offered very little evidence about the child's situation in India. As to delay, that would be a factor in considering whether wardship and return orders should be made, but it did not entitle the court to strike out the claim unless the prospects of success had been so hopeless as to justify the exercise of case management powers in such a profoundly draconian way. Judgment, 18/09/2021, free
  • Both parents were British citizens with Overseas Citizens of India status, and both had been living in India. One day before the first court hearing in child welfare proceedings brought by the father, the mother had flown their five-year-old son to England. The father now applied under the court's inherent jurisdiction for the summary return of their son to India, and asserted that this was a "hot pursuit" case. The application was opposed by the mother, who alleged domestic abuse and coercive behaviour. Cobb J reached the clear conclusion that it was in the boy's best interests to be returned to India forthwith, and for his future to be determined in the courts there. He was habitually resident in India, while his situation in England was at best transitory and fragile; for example, he was not attending school here. In Cobb J's judgement, the mother's clandestine and unilateral action in bringing the boy to England had been primarily prompted by her wish to avoid engaging in family court proceedings in India. The allegations of domestic abuse had been laid before the Indian court in the child welfare proceedings there. In his view, the risk of harm to the mother from the alleged abuse could be appropriately mitigated by the protective measures offered by the father, the fact that she could return to live with her parents, and the availability in India of civil law process (the equivalent of non-molestation proceedings). He was satisfied that the Indian court was appropriately seised of child welfare proceedings regarding the child. Judgment, 31/08/2021, free
  • The mother appealed against an order dismissing her applications under the inherent jurisdiction in respect of her children who were residing with their father in Libya. She submitted that the judge had wrongly interpreted and applied the rules in relation to the setting aside of an order under the inherent jurisdiction and in particular had failed to consider whether the children's welfare required the non-return order to be set aside. She also submitted that the judge had given undue weight to the likelihood that an order would not be directly and reciprocally enforced in Libya. For the father it was submitted that the judge had correctly identified the applicable law and made correct findings, and that the judge's characterisation of the mother's litigation conduct as Henderson abuse was a good example of judicial vigilance against repeat applications. In Baker LJ's judgment, to import Henderson abuse into children's proceedings was neither necessary nor appropriate: for example, where a child's welfare was in issue, a second application to the court would rarely be capable of being simply dismissed as a collateral attack on the first decision. He also disagreed as to the relevance of whether the order would be enforceable in Libya: the court was required to assess the welfare of the children, not the enforceability of its order. He also disagreed with the judge's two primary reasons for dismissing the mother's application. He concluded that the judge's approach to the set aside application had been flawed and that the mother's appeal against his decision to dismiss the application had to be allowed. Stuart-Smith LJ and Moylan LJ agreed. Judgment, 24/08/2021, free
  • The father sought the summary return of his two sons, aged 6 and 4, to the Republic of Zambia, invoking the court's inherent jurisdiction. The children had lived with their mother in England since August 2020. The mother resisted the application, submitting that the children had acquired a new habitual residence in this jurisdiction, and that the court thus had jurisdiction to conduct a full welfare enquiry under the Children Act 1986. Roberts J decided that the children were habitually resident in England, and had been at the time of the father's application. It was of particular significance that the home in which they now lived had been specifically purchased as a family home, with the specific consent of the father, before his change of heart about moving. There was no reasonable basis on which to conclude that a return to Zambia was in the children's best interests, given, for example, the father's precarious financial position, and the mother's previous unhappiness there. The cumulative effect of a return in the circumstances was likely to be wholly inimical to the interests of the children, who were now settled in their homes and schools in this jurisdiction. Roberts J thus refused the father's application for summary return. Judgment, 23/08/2021, free

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